Digitized  by  the  Internet  Archive 

in  2007  with  funding  from 

IVIicrosoft  Corporation 


http://www.archive.org/details/declarationoflonOOinte 


Publications  of  the 

Carnegie  Endowment  for  International  Peace 

Division  of  International  Law 

Washington 


The  Declaration  of  London 
February  26,  1909 

A    COLLECTION    OF    OFFICIAL   PAPERS   AND    DOCU- 
MENTS RELATING  TO  THE  INTERNATIONAL 
NAVAL  CONFERENCE  HELD  IN  LONDON 
DECEMBER,   1908— FEBRUARY,  1909 


WITH   AN  INTRODUCTION  BY 

ELIHU  ROOT 


EDITED   BY 

JAMES  BROWN  SCOTT 

Director  of  the  Division  of  International  Law  of  the  Carnegie  Endowment  for 
International  Peace 


NEW  YORK 

OXFORD  UNIVERSITY  PRESS 

AMERICAN  BRANCH  :  35  West  32nd  Stuebt 
LONDON.  TORONTO.  MELBOURNE.  AND  BOMBAY 

1919 


COPYRIGHT  1920 

BY   THE 

CARNEGIE    ENDOWMENT    FOR    INTERNATIONAL  PEACE 

2  Jackson  Place 

Washington,  D.  C. 


UNIVERSITY  OF  CALIFORNIA 
SANTA  BARBARA  COLLEGE  LIBRARY 


Prefatory  Note 

There  are  several  causes  tending  to  make  the  Declaration  of  London 
the  object  of  vital  interest  to  students  of  international  relations  and 
international  law.  The  possibility  of  achieving  the  establishment  of  an 
international  court  of  appeal  in  prize  matters,  an  achievement  which 
would  be  of  substantial  effect  in  the  field  of  maritime  law  itself  and 
which  would,  moreover,  provide  an  international  institution  of  more 
direct  and  concrete  action  than  almost  all  other  such  institutions  hitherto 
established,  depends  upon  the  success  with  which  the  nations  agree 
upon  the  code  to  be  applied  in  such  a  court.  The  equitable  solution  of 
that  problem,  which,  because  of  the  strategic  importance  of  the  seas 
in  the  life  of  the  nations,  lies  at  the  heart  of  the  effort  for  a  fruitful 
international  reorganization,  the  problem  of  the  freedom  of  the  seas, 
depends  in  its  most  acute  phases,  upon  the  proper  writing  of  the  laws 
of  war  at  sea.  Finally,  there  is  in  debate  a  considerable  body  of  law 
with  a  long  history  behind  it  and  a  complicated  and  rich  technical 
content  which  presents  in  itself  a  fascinating  study  in  legal  science. 

For  all  these  reasons  the  subject  claims  attention.  That  the  Declara- 
tion was  not  ratified  and  officially  sanctioned  in  its  own  right  and 
that  it  has  finally  been  abandoned  even  in  substance  does  not,  it 
would  seem,  detract  from  the  value  of  the  collection  which  follows. 
The  Declaration  constitutes  the  best  statement  of  the  laws  of  war  at 
sea  as  they  stood  in  1914,  and  it  marks  the  high  tide,  historically, 
of  the  liberalization  of  those  laws.  The  proposals  in  preparation 
for  and  in  course  of  the  conference  and  the  eventual  compromises 
attained  embody  in  written  form  all  those  perplexing  conflicts  be- 
tween sea  and  land,  island  and  continent,  navy  and  army,  belligerent 
and  neutral,  and,  to  a  certain  extent,  war  and  peace,  which  have 
emerged  into  public  attention  since  August,  1914. 

Mr.  Root  gathered  this  historical  process,  and  the  place  of  the 
Declaration  in  that  process,  into  a  pointed  summary  in  an  address 
delivered  in  Washington  in  1912 ;  that  address  is  here  used  as  an 
introduction  to  the  texts. 

James  Brown  Scott, 
Director  of  the  Division  of  International  Law. 

Washington,  D.  C, 

December  i,  ipi8. 


Contents 

PAGE 

The  real  significance  of  the  Declaration  of  London. — Address  of  the 
Honorable  Elihu  Root  at  the  sixth  annual  meeting  of  the  American 

Society  of  International  Law,  Washington,  April  25,  1912 1 

British  circular  instruction  of  February  27,  1908,  proposing  an  inter- 
national conference  in  order  to  arrive  at  an  agreement  as  to  the 
generally  recognized  principles  of  international  law,  suggesting  a 
program    of    questions    for    discussion,    and    proposing    preliminary 

exchange  of  memoranda 13 

British  circular  instruction  of  July  8,  1908,  trzmsmitting  memorandum 
setting  out  the  views  of  the  British  Government  as  to  the  rules  of 

international  law  on  various  points  of  the  program 15 

British  circular  instruction  of  September  14,  1908,  stating  that,  the  British 
Government's  invitation  having  been  accepted  by  the  Powers,  the 
former  will  draw  up  a  draft  declaration  as  a  basis  of  discussion  at 

the  Conference   16 

British  circular  instruction  of  November  10,  1908,  stating  that  the  draft 
declaration   is   in  an   advanced  stage   of   preparation   and   explaining 

the  objects  of   the  declaration 18 

Statement  of  the  views  expressed  by  the  Powers  in  their  memoranda, 
and  observations  by  the  British  Government  intended  to  serve  as 
a  basis   for  the  deliberations   of  the  Conference,  November  14, 
1908: 
A.  Contraband : 

Observations    20 

L — Absolute  contraband  : 

Germany    20 

United  States  of  America 21 

Austria-Hungary    22 

Spain    24 

France    24 

Great   Britain    24 

Italy    25 

Japan    25 

Netherlands     26 

Russia    26 

Observations  and  bases  for  discussion 27-8 

II. — Conditional  contraband  : 

Germany    28 

United  States  of  America 28 

Austria-Hungary    29 

Spain    29 


Vm  CONTENTS 

PAGE 

II. — Conditional  contraband — Continued. 

France    29 

Great   Britain    29 

Italy    30 

Japan    30 

Netherlands    30 

Russia    30 

Observations  and  basis  for  discussion   30-1 

III. — Destination : 

Germany 31 

United  States  of  America   32 

Austria-Hungary    32 

Spain    32 

France    32 

Great   Britain    32 

Italy    33 

Japan    34 

Netherlands 35 

Russia    35 

Observations  and  bases  for  discussion 36-7 

IV. — Penalties : 

Germany    37 

United   States   of   America    37 

Austria-Hungary    37 

Spain    38 

France 39 

Great    Britain    39 

Italy    40 

Japan    40 

Netherlands    40 

Russia    41 

Observations  and  bases  for  discussion 41-2 

V. — Temporary  exemption  at  the  beginning  of  hostilities : 

Germany     42 

United  States  of  America  43 

Austria-Hungary    43 

Spain    43 

France    43 

Great    Britain    43 

Italy    43 

Japan    43 

Netherlands     43 

Russia    43 

Observations  and  basis  for  discussion 43-4 

VI. — Compensation : 

Germany    44 


CONTENTS  IX 

PAGE 

VI. — Compensation — Continued. 

United  States  of  America   44 

Austria-Hungary    44 

Spain    47 

France    47 

Great    Britain    47 

Italy    47 

Japan 48 

Netherlands    48 

Russia    48 

Observations  and  basis  for  discussion   49 

VII. — Convoy : 

Germany    49 

United  States  of  America   49 

Austria-Hungary    49 

Spain    50 

France   50 

Great   Britain    50 

Italy    51 

Japan    51 

Netherlands    51 

Russia    52 

Observations  and  basis   for  discussion    52 

B.  Blockade : 

I.— Conditions  of  establishment  and  character: 

Germany     52 

United  States  of  America  53 

Austria-Hungary    53 

Spain    53 

France    54 

Great    Britain    54 

Italy    55 

Japan    56 

Netherlands     56 

Russia    56 

Observations  and  basis  for  discussion   56-7 

II. — Declaration  and  notification  : 

Germany    57 

United    States    of    America 58 

Austria-Hungary    58 

Spain    58 

France 59 

Great    Britain    59 

Italy    60 

Japan    60 

Netherlands    60 


CONTENTS 

PAGE 

II. — Declaration  and  notification — Continued. 

Russia    61 

Observations  and  basis  for  discussion  61-2 

III. — Liability  to  seizure : 

Germany    62 

United  States  of  America 63 

Austria-Hungary    64 

Spain    64 

France    64 

Great    Britain    64 

Italy    66 

Japan    67 

Netherlands    67 

Russia    68 

Observations  and  bases  for  discussion 68-70 

IV.— Penalty : 

Germany    70 

United  States  of  America   71 

Austria-Hungary    71 

Spain    71 

France    71 

Great  Britain  71 

Italy    72 

Japan    72 

Netherlands     72 

Russia    72 

Observations  and  basis  for  discussion    72-3 

C.  Continuous  voyage   73 

A. — In  the  matter  of  contraband : 

Germany    IZ 

United  States  of  America    73 

Austria-Hungary    74 

Spain    74 

France    75 

Great   Britain    75 

Italy    76 

Japan    76 

Netherlands     76 

Russia    Td 

Observations  and  basis  for  discussion 11 

B. — In  the  matter  of  blockade : 

Germany    11 

United  States  of  America 78 

Austria-Hungary    78 

Spain    78 

France    78 

Great  Britain  79 


CONTENTS  XI 

PAGE 

B. — In  the  matter  of  blockade — Continued. 

Italy    79 

Japan    80 

Netherlands    80 

Russia    80 

Observations  and  basis   for  discussion 80 

D.  Destruction  of  prizes : 

Germany    81 

United  States  of  America 81 

Austria-Hungary    82 

Spain    83 

France    84 

Great   Britain    84 

Italy    85 

Japan    85 

Netherlands    85 

Russia    85 

Observations  and  bases  for  discussion 86-7 

E.  Hostile  assistance : 

Germany    87 

United  States  of  America 88 

Austria-Hungary    88 

Spain    89 

France    90 

Great    Britain    90 

Italy    91 

Japan    92 

Netherlands    92 

Russia    93 

Observations  and  basis  for  discussion 93-4 

F.  Transformation  of  merchant  vessels : 

Germany    94 

United  States  of  America 95 

Austria-Hungary    95 

Spain    96 

France    97 

Great    Britain    97 

Italy    98 

Japan    98 

Netherlands    99 

Russia    99 

Observations    99 

G.  Transfer  of  flag : 

Germany    99 

United  States  of  America 100 

Austria-Hungary    100 

Spain    100 


xii  CONTENTS 

PAGE 
G.  Transfer  of  flag— Continued. 

France    1^1 

Great   Britain    101 

Italy    102 

Japan    103 

Netherlands    103 

Russia    103 

Observations  and  basis  for  discussion 103-4 

H.  Enemy  character : 

Germany    104 

United  States  of  America 105 

Austria-Hungary    105 

Spain    107 

France    107 

Great   Britain    107 

Italy    108 

Japan    109 

Netherlands    HO 

Russia    •  •  •  110 

Observations  and  bases   for  discussion 110-11 

Declaration    concerning   the    laws    of    maritime    war,    signed    at    London, 

February  26,    1909 112 

Preliminary  provision    114 

Chapter  I    (Articles  1-21).— Blockade  in  time  of  war 114 

Chapter  II   (Articles  22-44)  .—Contraband  of  war 117 

Chapter  III  (Articles  45-47)  .—Unneutral  service  122 

Chapter  IV   (Articles  48-54). — Destruction  of  neutral  prizes 124 

Chapter  V   (Articles  55-56). — Transfer  to  a  neutral  flag 125 

Chapter  VI   (Articles  57-60) . — Enemy  character 126 

Chapter  VII  (Articles  61-62).— Convoy 126 

Chapter  VIII    (Article   63). — Resistance   to   search 127 

Chapter   IX    (Article  64) . — Compensation 127 

Final  provisions    (Articles  65-71) 127 

General  report  presented  to  the  Naval  Conference  on  behalf  of  its  drafting 

committee     130 

Preamble     132 

Preliminary   provision    134 

Chapter  I    (Articles  1-21). — Blockade  in  time  of  war 135 

Chapter  II  (Articles  22-44) .—Contraband  of  war 146 

Chapter  III  (Articles  45-47) . — Unneutral  service 162 

Chapter  IV   (Articles  48-54). — Destruction  of  neutral  prizes 167 

Chapter  V  (Articles  55-56). — Transfer  to  a  neutral  flag 170 

Chapter  VI   (Articles  57-60) . — Enemy  character   173 

Chapter  VII  (Articles  61-62).— Convoy 177 

Chapter  VIII    (Article  63). — Resistance  to  search 180 

Chapter  IX  (Article  64) . — Compensation   181 

Final  provisions   (Articles  65-71)    184 


CONTENTS  XUl 

PAGE 

Final  protocol  of  the  London  Naval  Conference,  February  26,  1909 187 

Instructions  addressed  to  the  American  delegates  by  Elihu  Root,  Secretary 

of    State    190 

Report  of  the  American  delegates 196 

Chapter  I. — Blockade  in  time  of  war 197 

Chapter  II. — Contraband  of  war 198 

Chapter  III. — Unneutral    service    201 

Chapter  IV. — Destruction  of  neutral  prizes    202 

Chapter  V. — Transfer   of    flag    202 

Chapter  VI. — Enemy    character    r 204 

Chapter  VII. — Convoy    205 

Chapter  VIII. — Resistance  to  visit  and   search 205 

Chapter  IX. — Indemnity  for  seizure 206 

Conclusion    206 

Annex  B. — Rules  of  procedure  207 

Annex  C— Statement    of    the    delegation    of    the    United    States    of 

America  regarding  the  "radius  of  action" 207 

Annex  D.— Statement  of  the  delegation  of  the  United  States  regard- 
ing the  pursuit  of  ships  in  cases  of  blockade  running 208 

Annex  E. — Reservation  to  the  rules  relative  to  the  transfer  of  the  flag  209 
Instructions    addressed    to    the    British    delegates    by    Sir    Edward    Grey, 

Secretary  of  State  for  Foreign  Affairs 210 

(a)  Contraband    215 

(b)  Blockade    219 

(c)  Continuous  voyage   223 

(d)  Destruction  of  neutral  prizes    224 

(e)  Unneutral  service    229 

(f)  Conversion  of  merchant  ships  into  war-ships 230 

(g)  Transfer  of  merchant  vessels  to  a  neutral  flag  during  or  in  con- 
templation of  hostilities  231 

(h)  Enemy  property    232 

Report  of  the  British  delegates 235 

(i)   Blockade    237 

( ii )   Contraband    238 

(iii)   Unneutral  service    243 

(iv)   Destruction  of  neutral  prizes  245 

(v)  Transfer   of    merchant-vessels    from  a   belligerent   to   a   neutral 

flag    247 

(vi)   Enemy  character    249 

(vii)   Convoy    250 

(viii)   Resistance  to  search    250 

(ix)   Compensation    251 

(x)   Conversion  of  merchant-vessels  into  men-of-war  on  the  high  seas  251 

General   observations    252 

Bibliography    259 


THE  DECLARATION  OF  LONDON 
FEBRUARY  26.   1909 


The  Real  Significance  of  the  Declaration  of  London^ 

The  principal  achievement  of  the  Hague  Conference  of  1907  was  the 
Convention  for  an  International  Prize  Court.  That  Convention  pro- 
vided for  a  real  and  permanent  court  composed  of  judges  who  were  to 
be  appointed  by  the  contracting  Powers  for  terms  of  six  years,  were 
required  to  be  "jurists  of  known  proficiency  in  questions  of  international 
maritime  law  and  of  the  highest  moral  reputation,"  and  were  to  be 
paid  a  stated  compensation  from  a  fund  contributed  by  all  the  Powers. 

Jurisdiction  was  conferred  upon  the  court  to  review  on  appeal  all 
judgments  of  national  prize  courts.  By  a  subsequent  agreement,  for 
the  purpose  of  avoiding  difficulties  presented  by  the  constitutions  of 
some  of  the  signatory  Powers,  an  alternative  procedure  was  authorized 
under  which  the  new  court  might  pass  upon  the  question  involved  in 
the  case  of  prize  de  novo,  and  notwithstanding  any  judgment  of  the 
national  prize  court,  instead  of  passing  upon  it  by  way  of  appeal  from 
that  judgment.    Article  7  of  the  Convention  provides: 

If  a  question  of  law  to  be  decided  is  covered  by  a  treaty  in  force 
between  the  belligerent  captor  and  a  Power  which  is  itself  or 
whose  subject  or  citizen  is  a  party  to  the  proceedings,  the  court  is 
governed  by  the  provisions  of  the  said  treaty. 

In  the  absence  of  such  provisions  the  court  shall  apply  the  rules 
of  international  law.  If  no  generally  recognized  rule  exists,  the 
court  shall  give  judgment  in  accordance  with  the  general  prin- 
ciples of  justice  and  equity. 

In  estimating  the  value  of  such  an  agreement  among  the  civilized 
Powers  it  is  worth  while  even  for  a  student  of  international  law  to 
recall  the  wide  range  and  critical  importance  of  the  questions  to  be 
included  within  the  jurisdiction  of  the  new  court. 

When  war  breaks  out  between  two  considerable  maritime  Powers 
the  commerce  of  the  whole  world  is  immediately  affected.     Each  bel- 


1  Opening  address  by  Elihu  Root  as  President  of  the  American  Society  of  In- 
ternational Law  at  the  sixth  annual  meeting  of  the  Society  in  Washington, 
April  25,  1912. 


l  NAVAL  CONFERENCE  AT  LONDON 

ligerent  nation  undertakes,  so  far  as  it  can,  to  cripple  its  enemy  both  by 
direct  military  and  naval  operations  and  by  cutting  off  supplies,  inter- 
fering with  sources  of  income,  and  generally  weakening  the  enemy's 
national  power  to  maintain  an  army  and  navy. 

The  liability  of  enemy  merchant  ships  to  capture  tends  to  throw  the 
commerce  formerly  carried  on  by  the  belligerent  nations  into  the  hands 
of  neutrals  while  the  necessary  policy  of  each  belligerent  urges  it  to 
circumscribe  and  prevent  so  far  as  it  can  the  neutral  commerce  with 
the  other  belligerent.  Blockades  and  searches  and  seizures  for  carry- 
ing contraband  goods  are  familiar  methods  of  giving  effect  to  this 
policy.  Added  to  this  is  the  necessity  of  constant  watchfulness  by 
belligerents  to  prevent  neutral  vessels  from  rendering  direct  service  to 
the  enemy's  forces,  such  as  the  transportation  of  officers  and  troops  or 
messengers,  or  the  transmission  of  intelligence.  In  this  way  belliger- 
ents fall  into  an  attitude  of  suspicion  toward  neutral  vessels  and  un- 
friendliness toward  neutral  commerce,  and  the  peaceable  commerce  of 
the  world  falls  into  an  attitude  of  resenting  what  it  regards  as  unwar- 
ranted interference. 

The  most  striking  illustration  of  this  tendency  is  to  be  found  in  the 
tremendous  conflicts  of  the  Napoleonic  wars,  when  Pitt  and  Napoleon 
waged  war  not  merely  with  armies  and  navies  but  with  British  orders 
in  council  and  Continental  decrees.  The  Prussian  decree  which  began 
the  series  at  the  instance  of  Napoleon,  on  the  28th  of  March,  1806, 
declared  the  coast  of  the  North  Sea  closed  against  Great  Britain.  On 
the  8th  of  April,  1806,  Great  Britain  retaliated  for  that  decree  by  the 
first  order  in  council,  which  declared  the  blockade  of  the  Ems,  the 
Weser,  the  Elbe,  and  the  Trave.  On  the  16th  of  May,  1806,  came  the 
second  order  in  council  declaring  a  blockade  of  the  whole  coast  of  the 
Continent  from  the  Elbe  to  Brest.  On  the  14th  of  October,  1806, 
Napoleon  retaliated  with  the  famous  Berlin  Decree,  which  prohibited 
all  commerce  with  England.  On  the  7th  of  January,  1807,  another 
British  order  in  council  declared  all  neutral  trading  with  France,  or 
from  port  to  port  with  any  possession  of  France,  or  with  any  of  the 
allies  of  France  anywhere,  to  be  ground  for  condemnation.  On  the 
17th  of  December,  1807,  Napoleon's  Milan  Decree  declared  a  sentence 
of  outlawry  upon  England  and  all  English  ships.  It  was  impossible 
that  such  a  process  should  not  involve  all  Europe  in  a  universal  war; 
and  an  aftermath  of  England's  enforcement  of  her  policy  upon  the 
neutral  shipping  of  the  United  States  was  the  War  of  1812. 


THE    REAL    SIGNIFICANCE   OF    THE   DECLARATION    OF   LONDON  3 

The  Civil  War  in  the  United  States  gave  rise  to  a  multitude  of 
controversies  between  the  United  States  and  Great  Britain,  arising  on 
one  side  from  the  seizure  by  the  United  States  of  numerous  vessels 
charged  v^ith  directly  or  indirectly  attempting  to  violate  the  blockade 
of  the  southern  coast,  or  with  carrying  contraband,  and  arising  on  the 
other  side  from  the  fitting  out  of  Confederate  cruisers  in  the  neutral 
ports  of  Great  Britain.  The  negotiations  which  led  to  the  settlement 
of  both  classes  of  these  claims  by  arbitration  under  the  Treaty  of 
Washington  involved  no  slight  strain  upon  the  temper  and  good  sense 
of  both  nations,  and  the  result  was  reached  against  most  violent  protest 
on  the  part  of  many  who  preferred  war  to  concession. 

In  the  recent  war  between  Russia  and  Japan  a  feeling  of  strong  re- 
sentment was  created  in  England  by  Russia's  course  in  sinking  the 
British  merchantmen,  the  Knight  Commander,  the  Saint  Kilda,  the 
Hip  sang,  and  the  Allenton,  and  in  the  capture  of  the  Malacca  by 
Russian  vessels  which  had  passed  the  Dardanelles  and  the  Suez  Canal 
as  merchantmen  and  then  conveited  themselves  into  cruisers. 

There  is  no  more  fruitful  source  of  international  controversy,  of  in- 
ternational resentment  and  dislike,  than  in  the  great  multitude  of  ques- 
tions relating  to  the  rights  and  wrongs  of  neutrals  and  of  belligerents 
in  a  war  between  maritime  Powers.  The  tendency  always  is  for  the 
war  to  spread  through  these  controversies  and  exasperated  feelings, 
and  the  adjudication  of  questions  by  national  prize  courts  naturally 
fails  to  allay  the  irritation.  Provision  for  the  international  judicial 
determination  of  such  questions  is  adapted  not  only  to  preserve  the 
substantial  rights  of  neutral  commerce  and  of  belligerents,  but  also  to 
prevent  the  spread  of  war  much  as  municipal  ordinances  are  framed  to 
check  the  spread  of  fire,  and  sanitary  regulations  to  prevent  the  com- 
munication of  infectious  disease.  Considered  by  itself,  the  concur- 
rence of  the  major  part  of  the  civilized  world  in  the  project  of  this 
Convention  was  an  event  of  the  first  importance  in  the  development  of 
international  peace. 

When  Great  Britain,  however,  came  to  consider  the  ratification  of 
the  Prize  Court  Convention  she  found  herself  confronted  by  practical 
considerations  arising  from  her  insular  position,  her  dependence  upon 
foreign  food  supplies,  the  wide  extension  of  her  colonial  empire,  her 
enormous  merchant  marine,  and  the  relation  between  the  effectiveness 
of  her  great  navy  and  her  national  existence.  The  effect  of  these  con- 
siderations upon  the  Government  of  Great  Britain  is  best  stated  in  the 


4  NAVAL  CONFERENCE  AT  LONDON 

words  of  a  communication  which  that  Government  addressed  on  the 
27th  of  February,  1908,  to  the  other  principal  maritime  Powers.  In 
that  communication  Sir  Edward  Grey  said : 

Article  7  of  the  Convention  provides  that,  in  the  absence  of 
treaty  stipulations  applicable  to  the  case,  the  court  is  to  decide  the 
appeals  that  come  before  it.  in  accordance  with  the  rules  of  inter- 
national law,  or  if  no  generally  recognized  rules  exist,  in  accord- 
ance with  the  general  principles  of  justice  and  equity. 

The  discussions  which  took  place  at  The  Hague  during  the 
recent  Conference  showed  that  on  various  questions  connected 
with  maritime  war  divergent  views  and  practices  prevailed  among 
the  nations  of  the  world.  Upon  some  of  these  subjects  an  agree- 
ment was  reached,  but  on  others  it  was  not  found  possible  within 
the  period  for  which  the  Conference  assembled,  to  arrive  at  an 
understanding.  The  impression  was  gained  that  the  establishment 
of  the  International  Prize  Court  would  not  meet  with  general  ac- 
ceptance so  long  as  vagueness  and  uncertainty  exists  as  to  the 
principles  which  the  court,  in  dealing  with  appeals  brought  before 
it,  would  apply  to  questions  of  far-reaching  importance  affecting 
naval  policy  and  practice. 

His  Majesty's  Government  therefore  propose  that  another  con- 
ference should  assemble  during  the  autumn  of  the  present  year, 
with  the  object  of  arriving  at  an  agreement  as  to  what  are  the 
generally  recognized  principles  of  international  law,  within  the 
meaning  of  paragraph  2  of  Article  7  of  the  Convention,  as  to  those 
matters  wherein  the  practice  of  nations  has  varied,  and  of  then 
formulating  the  rules  which,  in  the  absence  of  special  treaty  pro- 
visions applicable  to  a  particular  case,  the  court  should  observe  in 
dealing  with  appeals  brought  before  it  for  decision. 

That  is  to  say,  the  realization  of  the  International  Prize  Court  must 
be  postponed  until  an  agreement  can  be  reached  upon  the  rules  of  law 
and  the  principles  of  justice  and  equity  which  the  court  is  to  apply  to 
international  controversies.  No  dissent  from  this  view  appears  to 
have  been  expressed  and,  pursuant  to  the  British  invitation,  Austria- 
Hungary,  France,  Germany,  Italy,  Japan,  Russia,  Spain,  the  Nether- 
lands, and  the  United  States,  sent  their  delegates  to  the  proposed  Con- 
ference in  London.  The  Conference  met  on  the  4th  of  December, 
1908,  and  continued  to  the  26th  of  February,  1909. 

The  task  of  the  Conference  was  delicate  and  difficult.  The  Declara- 
tion of  Paris  in  1856  had,  it  is  true,  furnished  four  rules  as  a  point  of 
departure : 


THE    REAL    SIGNIFICANCE   OF   THE   DECLARATION    OF    LONDON  5 

(1)  Privateering  is  and  remains  abolished. 

(2)  The  neutral  flag  covers  enemy's  merchandise  with  the  ex- 
ception of  contraband  of  war. 

(3)  Neutral  merchandise,  with  the  exception  of  contraband  of 
war,  is  not  capturable  under  the  enemy's  flag. 

(4)  Blockades,  in  order  to  be  obligatory,  must  be  effective ;  that 
is  to  say,  maintained  by  a  force  sufficient  to  really  prevent  access 
to  the  coast  of  the  enemy. 

But  the  half  century  which  had  elapsed  since  the  Declaration  of  Paris 
had  shown  that  these  rules  left  uncovered  a  great  field  of  controversy 
and  that  they  had  themselves  given  rise  to  numerous  questions  for 
which  they  afforded  no  solution.  The  divergent  views  upon  these  sub- 
jects of  controversy  had  become  intrenched  in  many  traditional  ideas 
of  different  nations  as  to  the  requirements  of  their  national  interests 
either  as  possible  belligerents  or  possible  neutrals,  and  these  ideas  made 
concessions  difficult,  so  difficult  that  at  the  Second  Hague  Conference 
it  had  been  found  quite  impracticable  to  reach  any  conclusions  upon 
questions  of  this  character  having  real  importance. 

The  members  of  the  London  Conference  addressed  themselves  to 
their  work  with  ability,  knowledge,  and  good  temper,  and  they  agreed 
upon  a  code  of  rules  which  they  called  a  "Declaration  concerning  the 
laws  of  naval  war,"  and  which  is  known  as  the  Declaration  of  London. 
The  first  chapter  of  the  Declaration,  containing  twenty-one  articles, 
deals  with  the  law  of  blockade  in  time  of  war.  The  second  chapter 
covers  the  law  of  contraband,  in  twenty-three  articles.  The  third  chap- 
ter contains  three  articles  upon  the  law  of  unneutral  service.  The 
fourth  chapter,  seven  articles,  on  the  destruction  of  neutral  prizes. 
The  fifth  chapter,  two  articles,  on  transfer  of  flag.  The  sixth  chapter, 
four  articles,  on  enemy  character.  The  seventh  chapter,  two  articles 
regarding  convoy.  The  eighth  chapter,  one  article  concerning  resist- 
ance to  search.  The  ninth  chapter,  an  article  upon  compensation. 
Then  follow  seven  final  articles.  The  preamble  of  the  Declaration  de- 
clares the  Powers  (naming  them) — 

Considering  the  invitation  which  the  British  Government  has 
given  to  various  Powers  to  meet  in  conference  in  order  to  deter- 
mine together  as  to  what  are  the  generally  recognized  rules  of 
international  law  within  the  meaning  of  Article  7  of  the  Conven- 
tion of  18th  October,  1907,  relative  to  the  establishment  of  an 
International  Prize  Court ; 

Recognizing  all  the  advantages  which  in  the  unfortunate  event 


6  NAVAL  CONFERENCE  AT  LONDON 

of  a  naval  war  an  agreement  as  to  the  said  rules  would  present, 
both  as  regards  peaceful  commerce,  and  as  regards  the  belligerents 
and  as  regards  their  political  relations  with  neutral  governments ; 

Considering  that  the  general  principles  of  international  law  are 
often  in  their  practical  application  the  subject  of  divergent  pro- 
cedure ; 

Animated  by  the  desire  to  insure  henceforward  a  greater  uni- 
formity in  this  respect; 

Hoping  that  a  work  so  important  to  the  common  welfare  will 
meet  with  general  approval : 

Have  appointed  as  their  plenipotentiaries,  that  is  to  say:  [Names 
of  plenipotentiaries.] 

Who,  after  having  communicated  their  full  powers,  found  in 
good  and  due  form,  have  agreed  to  make  the  present  declaration: 

Preliminary  Provision 

The  signatory  Powers  are  agreed  in  declaring  that  the  rules  con- 
tained in  the  following  chapters  correspond  in  substance  with  the 
generally  recognized  principles  of  international  law. 

It  is  interesting  to  observe  that  in  the  rules  regarding  contraband, 
the  doctrine  of  continuous  voyages,  with  which  the  Americans  were  so 
much  concerned  during  the  Civil  War,  is  applied  to  absolute  contraband 
but  not  to  conditional  contraband ;  that  the  great  extension  of  the  list 
of  contraband  articles,  which,  in  the  war  between  Russia  and  Japan, 
caused  such  general  dissatisfaction  among  neutrals  and  threatened  to 
nullify  the  doctrine  that  free  ships  make  free  goods,  has  been  checked 
by  a  definite  list  of  articles  which  are  not  under  any  circumstances  to 
be  considered  contraband,  and  by  carefully  framed  provisions  requir- 
ing affirmative  proof  that  goods  are  destined  for  the  use  of  the  armed 
forces  or  a  government  department  of  the  enemy  as  a  condition  upon 
the  right  to  seize  conditional  contraband.  It  is  also  interesting  that 
the  question  so  much  discussed  at  the  time  of  the  Trent  affair  between 
England  and  the  United  States  has  been  disposed  of  by  the  provision 
of  Article  47  that  "any  individual  embodied  in  the  armed  forces  of  the 
enemy  who  is  found  on  board  a  neutral  merchant  vessel  may  be  made 
a  prisoner  of  war  even  though  there  may  be  no  ground  for  the  capture 
of  the  vessel." 

This  by  implication  excludes  civil  agents  such  as  Mason  and  Slidell 
from  capture  but  approves  the  method  followed  by  Captain  Wilkes  in 
taking  persons  assumed  to  be  liable  to  capture  from  the  vessel  and 
releasing  the  vessel. 


THE    REAL    SIGNIFICANCE   OF    THE    DECLARATION    OF    LONDON  7 

It  is  not,  however,  my  purpose  to  discuss  the  specific  provisions  of 
these  rules. 

The  Declaration  was  accompanied  by  a  very  lucid  and  illuminating 
report  prepared  by  Mr.  Renault,  which  was  presented  to  the  Confer- 
ence upon  behalf  of  the  drafting  committee  and  which,  under  Conti- 
nental usage,  is  to  be  treated  as  an  authoritative  explanation  of  the 
text.     The  report  says  of  the  Declaration: 

The  body  of  rules  contained  in  the  Declaration,  which  is  the  re- 
sult of  the  deliberations  of  the  Naval  Conference,  and  which  is 
to  be  entitled  Declaration  concerning  the  laws  of  naval  war,  an- 
swers well  to  the  desire  expressed  by  the  British  Government  in 
its  invitation  of  February,  1908.  The  questions  of  the  program 
are  all  settled  except  two,  concerning  which  explanations  will  be 
given  later.  The  solutions  have  been  deduced  from  the  various 
views  or  different  practices  and  correspond  to  what  may  be  called 
the  media  sententia.  They  do  not  always  harmonize  absolutely 
with  the  views  peculiar  to  each  country,  but  they  do  not  shock  the 
essential  ideas  of  any.  They  should  not  be  examined  separately, 
but  as  a  whole,  otherwise  one  runs  the  risk  of  the  most  serious 
misunderstandings.  In  fact,  if  one  considers  one  or  more  isolated 
rules  either  from  the  belligerent  or  the  neutral  point  of  view,  he 
may  find  the  interests  with  which  he  is  especially  concerned  have 
been  disregarded  by  the  adoption  of  these  rules,  but  the  rules  have 
their  other  side.  The  work  is  one  of  compromise  and  of  mutual 
concession.     It  is,  as  a  whole,  a  good  work. 

We  confidently  hope  that  those  who  study  it  seriously  will  an- 
swer affirmatively.  The  Declaration  substitutes  uniformity  and 
certainty  for  the  diversity  and  the  obscurity  from  which  inter- 
national relations  have  too  long  suffered.  The  Conference  has 
tried  to  reconcile  in  an  equitable  and  practical  way  the  rights  of 
belligerents  and  those  of  neutral  commerce;  it  is  made  up  of 
Powers  placed  in  very  unlike  conditions,  from  the  political,  econo- 
mic, and  geographical  points  of  view.  There  is  on  this  account 
reason  to  suppose  that  the  rules  on  which  these  Powers  are  in 
accord  take  sufficient  account  of  the  different  interests  involved, 
and  hence  may  be  accepted  without  disadvantage  by  all  the  others. 

Two  questions  proposed  by  Great  Britain  to  the  Conference  remain 
unanswered :  One,  relating  to  the  transformation  of  merchant  vessels 
into  war-ships  on  the  high  seas,  and  the  other,  the  question  whether  the 
nationality  or  the  domicile  of  the  owner  should  be  adopted  in  determin- 
ing whether  property  is  enemy  property.  Upon  these  questions  the 
divergence  of  views  remains  unsettled.     But  throughout  the  great  field 


8  NAVAL  CONFERENCE  AT  LONDON 

of  controversy  in  this  branch  of  international  law  all  existing  differ- 
ences have  been  settled  by  fair  agreement  upon  just  and  reasonable 
rules. 

Professor  Westlake  said,  in  the  Nineteenth  Century,  for  March, 
1910: 

That  the  ten  greatest  naval  Powers  of  the  world  should  have 
met  in  conference  on  the  laws  of  naval  war  as  affecting  neutrals, 
and  that  after  careful  consideration  they  should  have  agreed  upon 
a  code  so  comprehensive  as  that  contained  in  the  Declaration  of 
London,  would  alone  suffice  to  make  the  year  nineteen  hundred 
and  nine  memorable  to  all  who  are  interested  in  the  improvement 
of  international  relations.  It  remains  for  the  year  nineteen  hun- 
dred and  ten  to  make  that  code  binding  on  the  parties  by  ratifica- 
tion, after  which  the  natural  course  of  events  will  speedily  make 
it  the  binding  code  of  the  world. 

It  appeared  to  many  of  us,  indeed,  when  the  agreement  was  reached 
and  the  Conference  dissolved,  that  a  great  thing  had  been  done  and  that 
the  way  had  been  cleared  to  carry  into  effect  the  Prize  Court  Conven- 
tion and  to  establish  upon  a  permanent  basis  the  judicial  settlement  of 
this  class  of  international  controversies  through  the  application  of  an 
accepted  code  of  law. 

Unfortunately,  that  behef  has  not  been  justified.  An  excited  contro- 
versy immediately  arose  regarding  the  effect  of  the  rules  contained  in 
the  Declaration  of  London  upon  the  interests  of  Great  Britain.  One 
set  of  objectors  declared  that  the  rules  sacrificed  the  interests  of  Great 
Britain  as  a  belligerent.  Another  set  asserted  that  the  rules  destroyed 
the  interests  of  Great  Britain  as  a  neutral.  Both  could  not  be  true, 
yet  each  set  of  objectors  continued  strenuously  to  oppose  the  Declara- 
tion upon  its  own  grounds. 

An  examination  of  the  arguments  on  both  sides  in  Great  Britain 
leads  to  the  conclusion  that  Mr.  Norman  Bentwich  sums  up  the  con- 
troversy fairly  when  he  says,  in  the  Fortnighty  Review: 

Great  Britain  should  now  be  in  a  position  to  ratify  the  Hague 
Prize  Court  Convention,  when  at  least  she  has  made  the  necessary 
changes  in  her  national  prize  law.  She  has  come  out  very  well 
indeed  from  the  international  bargaining:  she  had  most  to  lose  by 
the  previous  uncertainty;  she  has  gained  most  by  the  settlement. 
At  Paris,  in  1856,  she  gave  up  one  of  her  most  powerful  bellig- 
erent rights — the  right  to  capture  enemy  property  in  neutral  ships. 
Now  in  London  she  has  not  given  up  a  single  established  bellig- 


THE    REAL    SIGNIFICANCE   OF   THE   DECLARATION    OF    LONDON  y 

erent  right  of  value,  her  sole  concession  being  on  the  question  of 
convoy  which  is  more  apparent  than  real ;  and,  on  the  other  hand, 
she  has  gained  a  number  of  safeguards  for  her  neutral  commerce, 
and  a  number  of  limitations  of  the  alleged  belligerent  rights  of 
other  Powers.  There  is  indeed  a  naval  school  which  is  bitterly 
hostile  to  the  ratification  of  the  Declaration,  on  the  ground  that  by 
it  England  gives  up  certain  national  claims  of  long  standing  and 
concedes  certain  rights  against  which  she  has  long  struggled.  But 
the  claims  we  give  up  have  not  been  effectively  exercised  by  us, 
the  rights  we  concede  have  regularly  been  practiced  against  us. 

Nevertheless  the  Prize  Court  Bill,  introduced  in  Parliament  to  give 
effect  to  the  Convention  and  the  Declaration,  passed  the  House  of  Com- 
mons but  was  rejected  by  the  House  of  Lords,  and  so  the  matter 
stands. 

This  is  unfortunate  not  merely  because  the  rules  of  law  contained 
in  the  Declaration  are  wise  and  just  and  would  be  beneficial  to  the 
world,  but  because  the  most  promising  forward  movement  toward  the 
peaceable  settlement  of  international  disputes  is  frustrated  by  the  kind 
of  treatment  which,  if  persisted  in,  must  apparently  prevent  all  for- 
ward movement  in  the  same  line.  The  Prize  Court  Convention  is 
representative  of  the  general  movement  for  judicial  settlement.  The 
Declaration  of  London  is  representative  of  the  agreement  upon  the 
rules  of  international  law  which  is  essential  to  the  establishment  of  the 
practice  of  judicial  settlement  in  all  other  branches  of  international 
controversy. 

For  some  time  past  there  has  been  a  growing  impression  among  men 
familiar  with  international  affairs  that  the  obstacles  to  the  development 
of  any  real  system  for  the  submission  of  international  disputes  to  im- 
partial decision  are  to  be  found  not  so  much  in  the  unwillingness  of 
nations  to  submit  their  disputes  to  such  a  decision,  but  in  the  lack  of 
adequate  machinery  through  which  such  decisions  may  be  secured.  The 
tendency  of  arbitrations  in  which  representatives  of  the  disputing 
countries  are  joined  with  eminent  publicists  from  other  countries  for 
the  determination  of  international  controversies  is  not  to  decide  ques- 
tions of  fact  and  law,  but  it  is  to  negotiate  a  settlement.  Arbitrators 
as  a  rule  act  as  diplomatists  under  the  diplomatic  sense  of  honorable 
obligation  rather  than  as  judges  under  the  judicial  sense  of  honorable 
obligation.  Their  tendency  is  to  do  what  they  think  is  wise  and  for  the 
best  interests  of  all  concerned  and  to  get  the  controversy  disposed  of 
in  some  way  without  too  much  ill-feeling  upon  either  side.     In  this 


10  NAVAL  CONFERENCE  AT  LONDON 

process  the  frequent  failure  of  international  law  to  furnish  any  certain 
or  undisputed  guide  for  action  affords  free  opportunity  for  the  personal 
predilections  of  the  arbitrator,  often  colored  or  determined  by  the  pre- 
vailing opinions  in  the  country  from  which  he  comes ;  and  these  opin- 
ions are  often  quite  unlike  those  which  prevail  among  the  people  of 
either  of  the  disputing  countries.  It  often  happens,  therefore,  that  the 
selection  of  the  arbitrators  is  the  most  critical  and  decisive  step  in  the 
arbitration.  It  is  very  difficult  to  apply  to  such  a  proceeding  the 
analogy  of  a  judicial  proceeding  under  municipal  law  for  the  trial  and 
decision  of  cases  between  private  litigants.  It  may  well  be  that  coun- 
tries are  unwilling  to  have  their  interests  disposed  of  in  that  way, 
although  they  would  be  perfectly  ready  to  submit  their  cases  to  the 
decision  of  judges  acting  under  the  judicial  sense  of  responsibility. 
Many  of  us  are  convinced  that  the  true  line  of  development  for  the 
peaceable  settlement  of  international  controversies  is  to  be  found  in 
the  establishment  of  a  real  international  court  which  shall  hear  and 
determine  questions  instead  of  negotiating  a  settlement  of  them.  This 
question  was  much  discussed  in  the  Hague  Conference  of  1907,  which 
approved  and  recommended  to  the  Powers  the  adoption  of  a  draft 
Convention  for  the  creation  of  a  Judicial  Arbitral  Court  to  be  com- 
posed of  judges  appointed  for  fixed  periods  with  stated  compensation 
and  chosen  from  persons  "fulfilling  the  conditions  qualifying  them  in 
their  respective  countries  to  occupy  high  legal  posts,  or  to  be  jurists  of 
recognized  competence  in  matters  of  international  law."  The  proce- 
dure, powers,  and  jurisdiction  of  the  court  were  all  provided  for  and 
the  draft  convention  as  approved  by  the  Conference  was  defective  only 
in  not  determining  how  the  judges  should  be  appointed.  The  deter- 
mination upon  this  matter  was  prevented  by  difference  of  opinion  be- 
tween the  larger  and  the  smaller  Powers  represented  in  the  Confer- 
ence. The  provision  for  a  general  judicial  court  with  jurisdiction  to 
hear  and  determine  all  matters  of  international  dispute  was  thus  car- 
ried within  one  step  of  the  completeness  which  was  reached  in  the 
Convention  for  the  International  Prize  Court.  The  Prize  Court  thus 
became  the  advance  guard  of  the  proposed  judicial  system,  the  experi- 
ment upon  which  the  success  of  the  whole  plainly  depends.  President 
Roosevelt,  in  his  message  to  Congress  of  December  3,  1907,  said  truly: 

Not  only  will  the  International  Prize  Court  be  the  means  of 
protecting  the  interest  of  neutrals,  but  it  is  in  itself  a  step  toward 
the  creation  of  the  most  general  court  for  the  hearing  of  inter- 


THE    REAL    SIGNIFICANCE   OF    THE    DECLARATION    OF    LONDON  11 

national  controversies,  to  which  reference  has  just  been  made. 
The  organization  and  action  of  such  a  Prize  Court  can  not  fail  to 
accustom  the  different  countries  to  the  submission  of  international 
questions  to  the  decision  of  an  international  tribunal,  and  we  may 
confidently  expect  the  results  of  such  submission  to  bring  about 
a  general  agreement  upon  the  enlargement  of  the  practice. 

The  relations  between  the  project  for  the  Prize  Court  and  the  project 
for  the  general  Judicial  Arbitral  Court  are  so  manifest  that  the  United 
States  has  already  proposed  to  the  other  Powers  an  enlargement  of  the 
jurisdiction  of  the  Prize  Court  so  that  any  question  between  the  signa- 
tory Powers  can  be  heard  and  determined  by  the  judges  of  the  Prize 
Court.  This  was  done  by  instructions  to  the  delegates  of  the  United 
States  at  the  London  Conference,  dated  February  6,  1909,  by  an  identic 
circular  note  to  the  Powers  represented  at  that  Conference  dated 
March  5,  1909,  and  by  a  formal  communication  from  the  Department 
of  State  to  the  Powers,  dated  October  18,  1909.  The  form  given  to 
the  proposal  in  the  last  mentioned  communication  from  the  American 
State  Department  was  that  there  should  be — 

a  further  agreement  that  the  International  Court  of  Prize  estab- 
lished by  the  Convention  signed  at  The  Hague,  October  18,  1907, 
and  the  judges  thereof  shall  be  competent  to  entertain  and  decide 
any  case  of  arbitration  presented  to  it  by  a  signatory  of  the  Inter- 
national Court  of  Prize,  and  that  when  sitting  as  a  Court  of  Arbi- 
tral Justice  the  said  International  Court  of  Prize  shall  conduct  its 
proceedings  in  accordance  with  the  draft  convention  for  the  estab- 
lishment of  a  Court  of  Arbitral  Justice,  approved  and  recom- 
mended by  the  Second  Hague  Peace  Conference,  on  October  18, 
1907. 

I  am  advised  that  this  proposal  was  favorably  received  and  that  action 
to  give  it  effect  in  some  practicable  form  only  awaits  the  ratification  of 
the  Prize  Court  Convention.  This  line  of  advance  also  is  thus  blocked 
by  the  failure  to  confirm  the  Declaration  of  London. 

This  review  of  the  origin  and  nature  of  the  Declaration  of  London 
and  of  the  attendant  conditions  exhibits  the  true  significance  of  the 
Declaration.  It  is  not  merely  a  code  of  useful  rules.  It  is  necessary 
to  the  existence  of  the  International  Prize  Court  and  therefore  to  the 
existence  of  any  Judicial  Arbitral  Court.  It  is  the  one  indispensable 
forward  step  without  which  no  practical  progress  can  now  be  made  in 
the  further  development  of  a  system  of  peaceable  settlement  of  inter- 


12  NAVAL  CONFERENCE  AT  LONDON 

national  disputes.  It  is  to  be  hoped  that  a  fuller  realization  of  its  far- 
reaching  importance  will  soon  lead  to  its  acceptance.  I  can  not  avoid 
the  conviction  that  a  broad-minded  and  statesmanlike  treatment  of  this 
constructive  measure  for  practical  progress  in  international  relations, 
is  of  greater  value  than  merely  benevolent  but  academic  declarations  in 
favor  of  peace  which  are  to  be  found  in  general  treaties  of  arbitration 
and  in  diplomatic  correspondence  and  in  public  speeches. 

Indeed  the  whole  practice  of  making  general  treaties  of  arbitration 
can  not  fail  to  be  discredited  by  the  failure,  if  there  is  to  be  a  failure, 
of  the  Prize  Court  Convention,  for  the  cynical  are  sure  to  question  the 
sincerity  of  general  treaties  of  arbitration  covering  the  whole  field  of 
international  relations  between  nations  which  refuse  to  assent  to  this 
Convention  covering  but  a  small  part  of  the  same  field. 

Elihu  Root. 


Call  of  the  Conference  by  Great  Britain^ 

Sir  Edward  Grey  to  His  Majesty's  Representatives  at  Berlin,  Madrid, 
Paris,  Rome,  St.  Petersburg,  Tokio,  Vienna,  and  Washingtoti- 

FoREiGN  Office,  February  2/,  igo8. 

Sir,  The  Convention  for  the  establishment  of  an  International 
Court  of  Appeal  in  matters  of  prize  which  formed  Annex  12  to  the 
Final  Act  of  the  Second  Peace  Conference  has  been  under  the  con- 
sideration of  His  Majesty's  Government. 

2.  Article  7  of  the  Convention  provides  that,  in  the  absence  of  treaty 
stipulations  applicable  to  the  case,  the  Court  is  to  decide  the  appeals 
that  come  before  it,  in  accordance  with  the  rules  of  international  law, 
or  if  no  generally  recognized  rules  exist,  in  accordance  with  the  gen- 
eral principles  of  justice  and  equity. 

3.  The  discussions  which  took  place  at  The  Hague  during  the  recent 
Conference  showed  that  on  various  questions  connected  with  maritime 
war  divergent  views  and  practices  prevailed  among  the  nations  of  the 
world.  Upon  some  of  these  subjects  an  agreement  was  reached,  but 
on  others  it  was  not  found  possible,  within  the  period  for  which  the 
Conference  assembled,  to  arrive  at  an  understanding.  The  impression 
was  gained  that  the  establishment  of  the  International  Prize  Court 
would  not  meet  with  general  acceptance  so  long  as  vagueness  and 
uncertainty  exist  as  to  the  principles  which  the  court,  in  dealing  with 
appeals  brought  before  it,  would  apply  to  questions  of  far-reaching 
importance  affecting  naval  policy  and  practice. 

4.  His  Majesty's  Government  therefore  proposes  that  another  con- 
ference should  assemble  during  the  autumn  of  the  present  year,  with 
the  object  of  arriving  at  an  agreement  as  to  what  are  the  generally 
recognized  principles  of  international  law,  within  the  meaning  of  para- 
graph 2  of  Article  7  of  the  Convention,  as  to  those  matters  wherein  the 
practice  of  nations  has  varied  and  of  then  formulating  the  rules  which, 
in  the  absence  of  special  treaty  provisions  applicable  to  a  particular 


^British  Parliamentary  Paper.  Miscellaneous,  No.  4  (1909),  p.  1.     [Cd.  4554.] 
2  With  the  concurrence  of  all  the  Powers  invited  to  the  conference,  the  in- 
vitation was  subsequently  extended  to  the  Netherland  Government. 


14  NAVAL  CONFERENCE  AT  LONDON 

case,  the  Court  should  observe  in  dealing  with  appeals  brought  before 
it  for  decision. 

5.  The  rules  by  which  appeals  from  national  Prize  Courts  would  be 
decided  affect  the  rights  of  belligerents  in  a  manner  which  is  far  more 
serious  to  the  principal  naval  Powers  than  to  others,  and  His  Maj- 
esty's Government  are  therefore  communicating  only  with  the  Govern- 
ments of  Austria-Hungary,  France,  Germany,  Italy,  Japan,  Russia, 
Spain,  and  the  United  States  of  America.  They  would  propose  that 
the  conference  should  assemble  in  October^  and,  if  it  is  agreeable  to 
the  Governments  of  those  countries,  they  would  suggest  that  it  should 
meet  in  London. 

6.  The  questions  upon  which  His  Majesty's  Government  consider  it 
to  be  of  the  greatest  importance  that  an  understanding  should  be 
reached  are  those  as  to  which  divergent  rules  and  principles  have  been 
enforced  in  the  Prize  Courts  of  diflferent  nations.  It  is  therefore 
suggested  that  the  following  questions  should  constitute  the  programme 
of  the  conference : 

(a)  Contraband,  including  the  circumstances  under  which  particu- 
lar articles  can  be  considered  as  contraband ;  the  penalties  for  their 
carriage ;  the  immunity  of  a  ship  from  search  when  under  convoy ; 
and  the  rules  with  regard  to  compensation  where  vessels  have  been 
seized  but  have  been  found  in  fact  only  to  be  carrying  innocent 
cargo ; 

(b)  Blockade,  including  the  questions  as  to  the  locality  where  seiz- 
ure can  be  effected,  and  the  notice  that  is  necessary  before  a  ship  can 
be  seized; 

(c)  The  doctrine  of  continuous  voyage  in  respect  both  of  contra- 
band and  of  blockade; 

(d)  The  legality  of  the  destruction  of  neutral  vessels  prior  to  their 
condemnation  by  a  Prize  Court ; 

(e)  The  rules  as  to  neutral  ships  or  persons  rendering  "unneutral 
service"  ("assistance  hostile")  ; 

(/)  The  legality  of  the  conversion  of  a  merchant-vessel  into  a  war- 
ship on  the  high  seas ; 

(g)  The  rules  as  to  the  transfer  of  merchant-vessels  from  a  bellig- 
erent to  a  neutral  flag  during  or  in  contemplation  of  hostilities ; 

(h)  The  question  whether  the  nationality  or  the  domicile  of  the 


1  The  meeting  of  the  conference  was  postponed  to  December  4,  1908. 


DIPLOMATIC     CORRESPONDENCE  15 

owner  should  be  adopted  as  the  dominant  factor  in  deciding  whether 
property  is  enemy  property. 

7.  His  Majesty's  Government  are  deeply  sensible  of  the  great  advan- 
tage which  would  arise  from  the  establishment  of  an  International 
Prize  Court,  but  in  view  of  the  serious  divergences  which  the  discussion 
at  The  Hague  brought  to  light  as  to  many  of  the  above  topics  after 
an  agreement  had  practically  been  reached  on  the  proposals  for  the 
creation  of  such  a  Court,  it  would  be  difficult,  if  not  impossible,  for 
His  Majesty's  Government  to  carry  the  legislation  necessary  to  give 
effect  of  the  Convention  unless  they  could  assure  both  Houses  of  the 
British  Parliament  that  some  more  definite  understanding  had  been 
reached  as  to  the  rules  by  which  the  new  tribunal  should  be  governed. 

8.  If  the  programme  outlined  above  is  concurred  in  by  the  Govern- 
ment to  which  you  are  accredited,  it  would  be  convenient  if,  on  some 
subsequent  date,  as  for  instance  the  1st  August,  the  Governments 
were  to  interchange  Memoranda  setting  out  concisely  what  they  regard 
as  the  correct  rule  of  international  law  on  each  of  the  above  points, 
together  with  the  authorities  on  which  that  view  is  based.  This  course 
would  greatly  facilitate  the  work  of  the  Conference,  and  materially 
shorten  its  labours. 

9.  I  have  to  request  your  Excellency  to  address  a  communication  in 

this  sense  to  the  Minister  for  Foreign  Affairs,  expressing  at  the  same 

time  the  hope  that  if  his  Government  are  favourable  to  the  idea  of  the 

conference  being  held,  they  will  send  a  Delegate  furnished  with  full 

powers  to  negotiate  and  conclude  an  agreement. 

I  am,  etc., 

E.  Grey. 


British  Circular  Instruction  of  July  8,  1908^ 
Sir  Edward  Grey  to  Sir  C.  Mac  Donald^ 

Foreign  Office,  July  S,  iqoS. 
Sir, 

With  reference  to  paragraph  8  of  my  despatch  of  the  27th  February 
last,  I  transmit  to  you  herewith  two  copies  of  a  Memorandum  setting 


^British  Parliamentary  Paper,  Miscellaneous,  No.  4  (1909),  p.  2.     [Cd.  4554.] 
2  A    similar    despatch    was    addressed    to    His    Majesty's    Representatives    at 

Paris,    Berlin,   Madrid,   Vienna,    Rome,   Washington,    St.    Petersburg,    and    The 

Hague. 


16  NAVAL  CONFERENCE  AT  LONDON 

out  the  views  of  His  Majesty's  Government,  founded  upon  the  de- 
cisions in  the  British  Courts  as  to  the  rules  of  international  law  on  the 
points  enumerated  in  my  above-mentioned  despatch  proposed  for  dis- 
cussion at  the  forthcoming  Naval  Conference  at  London.^  I  have  to 
instruct  you  to  hand  one  copy  of  this  Memorandum  to  the  Japanese 
Government,  and  to  inform  me  by  telegraph  that  you  have  done  so. 

In  so  doing,  you  should  explain  that  it  is  merely  a  compilation  of 
rules  and  dicta  of  British  Courts  and  British  practice  collected  for 
convenience,  but  necessarily  put  compendiously,  so  that,  if  a  question 
arose,  it  would  have  to  be  decided  by  reference  tO'  the  full  authorities, 
and  that,  therefore,  it  is  not  to  be  taken  as  an  official  code,  since  some 
of  the  rules  and  dicta  are  of  ancient  date,  and  their  application  may 
be  difficult  in  view  of  modem  conditions. 

I  am,  &c., 

E.  Grey. 


British  Circular  Instruction  of  September  14,  1908- 

Sir  Edzvard  Grey  to  His  Majesty's  Representatives  at  Berlin,  Madrid, 
Paris,  Rome,  St.  Petersburg,  The  Hague,  Tokio,  Vienna,  and 
Washington 

Foreign  Office,  September  14,  igo8. 
(Circular) 
(Extract) 

The  invitations  which  were  issued  by  His  Majesty's  Government  for 
a  Conference  in  London  during  the  coming  autumn  with  the  object 
of  arriving  at  an  agreement  as  to  what  are  the  generally  recognized 
principles  of  international  law  on  certain  questions  of  maritime  war 
have  now  been  accepted  by  all  the  Powers  to  whom  they  were  sent. 
With  the  concurrence  of  all  the  Governments  which  were  originally 
asked  to  take  part  in  the  Conference,  an  invitation  was  subsequently 
issued  to  the  Netherland  Government  in  view  of  the  peculiar  position 
occupied  by  their  country  as  the  seat  of  the  proposed  International 


1  This  Memorandum  is  incorporated  in  the  "Statement  of  Views  Expressed  by 
the  Powers,  in  their  Memoranda."  Pertinent  portions  with  the  original  notes 
may  be  found  under  the  subheading  "Great  Britain,"  infra,  pp.  20-111. 

^British  Parliamentary  Paper,  Miscellaneous,  No.  4  (1909),  p.  14.     [Cd.  4554.] 


DIPLOMATIC     CORRESPONDENCE  17 

Prize  Court  and  as  the  meeting  place  of  the  First  and  Second  Peace 
Conferences.    This  invitation  has  also  been  accepted. 

The  list  of  subjects  enumerated  in  my  circular  despatch  of  the  27th 
February  last  has  met  with  general  approval,  though  a  desire  has 
been  expressed  that  the  specific  mention  of  the  subjects  enumerated  in 
the  circular  should  not  be  held  to  exclude  the  discussion  of  other 
questions  connected  therewith  if  their  consideration  would  be  of  help 
to  carry  into  effect  the  work  of  the  Conference.  While  cordially 
acquiescing  in  the  wish  that  no  point  or  question  should  be  excluded 
which  is  germane  to  the  work  of  the  Conference,  His  Majesty's  Gov- 
ernment are  anxious  that  the  subjects  for  consideration  should  be 
limited  to  those  whose  elucidation  is  required  in  order  to  faciHtate  the 
general  acceptance  of  the  scheme  for  the  creation  of  the  International 
Prize  Court. 

His  Majesty's  Government  will  endeavour  to  prepare,  and  hope  to 
lay  before  the  Conference  on  its  assembly,  as  a  suitable  basis  for  its 
deliberations,  a  draft  declaration  in  terms  which  shall  harmonize  as  far 
as  may  be  possible  the  views  and  interpretations  of  the  accepted  law  of 
nations  as  enunciated  in  the  memoranda  of  the  several  Governments. 
The  text  of  any  paper  drawn  up  on  the  lines  contemplated  may  of 
course  have  to  depart  in  some  respects  from  the  views  held  by  par- 
ticular Governments,  although  every  effort  will  be  made  to  reconcile 
such  divergences,  and  it  is  necessary  to  point  out,  even  at  the  present 
stage,  that  the  provisions  of  the  proposed  draft  declaration  must  not, 
in  the  circumstances  explained,  be  taken  to  command  on  every  point  the 
assent  of  Great  Britain,  but  will  be  submitted  as  a  basis  for  discussion. 

With  reference  to  the  date  at  which  the  Conference  should  assemble, 
it  will  be  remembered  that  His  Majesty's  Government  originally  sug- 
gested that  the  first  meeting  should  take  place  early  in  October;  but  I 
have  since  learned  that  it  would  be  convenient  to  some  of  the  Powers 
if  a  somewhat  later  date  was  fixed  upon,  in  order  that  the  sittings 
should  not  clash  with  the  Copyright  Conference  to  be  held  at  Berlin 
in  October.  Moreover,  His  Majesty's  Government  would  experience 
much  difficulty  in  carrying  through  the  necessary  preparatory  work  for 
the  elaboration  of  the  bases  of  discussion  in  the  period  originally  con- 
templated. They  had  hoped  to  receive  the  memoranda  embodying  the 
views  of  the  several  Governments  on  the  1st  August  last.  It  was, 
however,  not  until  some  time  after  that  date  that  the  first  memoranda 
were  received,  and  even  at  the  present  time  most  of  them  are  still  out- 


18  NAVAL   CONFERENCE  AT   LONDON 

Standing.  His  Majesty's  Government  would  therefore  now  propose 
that  the  Conference  should  assemble  at  the  Foreign  Office  in  London 
on  Tuesday,  the  1st  December  next.^ 

In  bringing  the  contents  of  this  despatch  to  the  knowledge  of  the 
Government  to  which  you  are  accredited,  you  will  take  an  opportunity 
of  assuring  them  of  the  pleasure  that  it  will  give  to  His  Majesty's 
Government  to  welcome  their  delegates  to  the  Conference,  in  the  con- 
fident hope  that  the  spirit  of  co-operation  and  good-will  which  has  led 
to  its  meeting  will  subsist  throughout  its  deliberations  and  produce  the 
results  which  it  is  the  earnest  desire  of  the  Governments  there  repre- 
sented to  attain. 

I  am,  &c. 

E.  Grey. 


British  Circular  Instruction  of  November  10,  1908^ 

Sir  Edzvard  Grey  to  His  Majesty's  Representatives  at  Berlin,  Madrid, 
Paris,  Rome,  St.  Petersburg,  The  Hague,  Tokio,  Vienna,  and 
Washington 

Foreign  Office,  November  lo,  ipo8. 

(Extract) 

The  document  which  His  Majesty's  Government  are  drawing  up  as 
a  basis  for  discussion  at  the  Conference  is  in  an  advanced  stage  of 
preparation.  It  will,  I  hope,  be  ready  about  the  15th  of  this  month,  and 
I  shall  lose  no  time  in  communicating  it  to  the  Governments  of  the 
Powers  to  be  represented  at  the  Conference. 

As  has  already  been  explained,  the  object  which  His  Majesty's  Gov- 
ernment have  had  in  view  in  drafting  this  Declaration  is  to  set  out  as 
definitely  as  possible  the  points  of  law  on  which  the  principles  upheld 
by  all  the  Powers — and  also,  wherever  this  can  be  shown,  their  practice 
— are  in  agreement,  and  also  those  points  in  regard  to  which  common 
experience  and  similarity  of  conditions  arising  from  modem  develop- 
ments of  maritime  commerce,  navigation,  and  war  make  it  possible  at 
the  present  time  to  lay  down  the  general  principles  of  international  law 


1  A  further  adjournment  was  ultimately  made  to  December  4,  1908. 

^British  Parliamentary  Paper,  Miscellaneous,  No.  4  (1909),  p.  18.     [Cd.  4554.] 


DIPLOMATIC     CORRESPONDENCE  19 

which  seem  to  have  gradually  emerged  out  of  the  separate  pursuit  of 
independent  lines  by  each  country. 

The  main  task  of  the  Conference  will  not  therefore  be  to  deliberate 
de  lege  ferenda,  as  the  Peace  Conferences  have  been  called  upon,  and 
may  again  be  called  upon,  to  do  with  a  view  to  develop  and  extend  the 
scope  of  the  conventional  law  of  nations.  The  proposed  Declaration 
should,  in  the  opinion  of  His  Majesty's  Government,  place  on  record 
that  those  Powers  which  are  best  qualified  and  most  directly  interested, 
recognize,  as  the  result  of  their  common  deliberations,  that  there  exists 
in  fact  a  common  law  of  nations  of  which  it  is  the  purport  of  the 
Declaration,  in  the  common  interest,  to  set  out  the  principles. 

His  Majesty's  Government  venture  to  hope  that  in  thus  defining  "the 
generally  recognized  rules  of  international  law,"  which,  as  is  expressly 
laid  down,  are  to  form  the  basis  of  the  decisions  of  the  International 
Prize  Court,  the  Conference  will  put  an  end  to  many  uncertainties  and 
doubts  which  are  a  danger  both  to  peaceful  commerce  and  to  good 
political  relations,  and  which  only  too  often  are  caused  by  the  mere  fact 
that  the  law  to  which  all  nations  are  really  anxious  to  conform  lacks 
the  authority  of  an  accepted  definition. 

In  preparing  the  document  in  the  form  proposed,  His  Majesty's 
Government  have  accordingly  intended,  not  to  suggest  any  new  doc- 
trines, but  to  crystallize,  in  the  shape  of  a  few  simple  propositions,  the 
questions  on  which  it  seems  possible  to  lay  down  a  guiding  principle 
generally  accepted.  In  regard  to  other  questions  which  can  not  be  so 
dealt  with,  His  Majesty's  Government  will  be  happy  to  consider  in 
the  most  conciliatory  spirit  such  proposals  as  have  been  or  may  be  put 
forward  with  the  view  to  the  adoption  of  special  conventional  stipu- 
lations. 

I  am.  &c. 

E.  Grey. 


Statement  of  the  Views  Expressed  by  the  Powers  in  Their  Memo- 
randa, and  Observations  by  the  British  Government  Intended 
to  Serve  as  a  Basis  for  the  Deliberations  of  the  Conference^ 


A 

CONTRABAND 

Observations 

It  is  established  according  to  all  the  memoranda,  that  the  principle 
of  contraband  of  war  continues  to  be  a  principle  sanctioned  by  inter- 
national law. 

All  the  memoranda  alike  make  a  distinction  according  as  the  objects 
intercepted  have  a  hostile  character  more  or  less  openly  or  clearly 
shown  and  thus  establish,  expressly  or  impliedly,  the  classification  into 
absolute  contraband  and  conditional  or  relative  or  accidental  contra- 
band. 

This  view  was  maintained  in  the  deliberations  of  the  Second  Peace 
Conference  at  The  Hague,  1907. 


I — Absolute  Contraband 
Views  expressed  by  the  memoranda 

Germany 

Art.  17.  The  following  articles  and  materials  are,  without  notice, 
regarded  as  contraband,  under  the  name  of  absolute  contraband: 

1.  Arms  of  all  kinds,  including  arms  for  sporting  purposes  and  their 

unassembled  distinctive  parts ; 

2.  Projectiles,  charges,  and  cartridges  of  all  kinds,  and  their  un- 

assembled distinctive  parts ; 

3.  Powder  and  explosives  of  all  kinds ; 

4.  Gun-carriages,  caissons,  limbers,  military  wagons,  field  forges,  and 

their  unassembled  distinctive  parts; 

5.  Clothing  and  equipment  of  a  distinctly  military  character ; 


'^British  Parliamentary  Papers,  Miscellaneous,  No.  5  (1909),  p.  59.  [Cd.  4555.] 


VIEWS  EXPRESSED  BY  THE  POWERS  21 

6.  Saddle,  draft,  and  pack  animals  suitable  for  use  in  war ; 

7.  All  kinds  of  harness  of  a  distinctly  military  character; 

8.  Conserved  food  suitable  for  the  use  of  troops ; 

9.  Articles  of  camp  equipment  and  their  unassembled  distinctive 

parts; 

10.  Railroad  rails  as  well  as  locomotives  and  vehicles  intended  to 

run  on  rails,  and  their  unassembled  distinctive  parts ; 

11.  Telegraphs,    radiotelegraphs,    and    telephones    and    their    un- 

assembled distinctive  parts ; 

12.  Armor  plates ; 

13.  Warships  and  boats  and  their  unassembled  parts  especially  dis- 

tinctive as  suitable  for  use  only  in  a  vessel  of  war ; 

14.  Balloons  as  well  as  their  unassembled  distinctive  parts  and  ac- 

cessories, articles,  and  materials  of  a  character  suitable  for  use 
in  aerial  navigation ; 

15.  Implements  and  apparatus  made  exclusively  for  the  manufacture 

of  munitions  of  war,  for  the  manufacture  or  repair  of  arms 
and  of  military  materials  for  use  on  land  or  sea. 

Belligerents  can  complete  the  list  of  absolute  contraband  by  a  special 
and  notified  declaration.  They  can,  however,  add  to  the  already  exist- 
ing list  only  articles  and  materials  made  exclusively  for  use  in  war. 

United  States  of  America 

Art.  33.  The  term  "contraband  of  war"  includes  only  articles  hav- 
ing a  belligerent  destination  and  purpose.  Such  articles  are  classed 
under  two  general  heads  : 

( 1 )  Articles  that  are  primarily  and  ordinarily  used  for  military  pur- 
poses in  time  of  war,  such  as  arms  and  munitions  of  war, 
military  material,  vessels  of  war,  or  instruments  made  for  the 
immediate  manufacture  of  munitions  of  war. 
Articles  of  the  first  class,  destined  for  ports  of  the  enemy  or 
places  occupied  by  his  forces,  are  always  contraband  of  war. 

In  case  of  war,  the  articles  that  are  conditionally  and  unconditionally 
contraband,  when  not  specifically  mentioned  in  treaties  previously  made 
and  in  force,  will  be  duly  announced  in  a  public  manner. 

Art.  34.  Vessels,  whether  neutral  or  otherwise,  carrying  contraband 


22  NAVAL  CONFERENCE  AT  LONDON 

of  war  destined  for  the  enemy,  are  liable  to  seizure  and  detention,  unless 
treaty  stipulations  otherwise  provide. 

Art.  35.  Until  otherwise  announced,  the  following  articles  are  to  be 
treated  as  contraband  of  war : 

Absolute  contraband.  Ordnance;  machine  guns  and  their  appli- 
ances and  the  parts  thereof ;  armour  plate  and  whatever  pertains  to 
the  offensive  and  defensive  armament  of  naval  vessels ;  arms  and 
instruments  of  iron,  steel,  brass,  or  copper,  or  of  any  other  material, 
such  arms  and  instruments  being  specially  adapted  for  use  in  war  by 
land  or  sea ;  torpedoes  and  their  appurtenances ;  cases  for  mines,  of 
whatever  material ;  engineering  and  transport  materials,  such  as  gun- 
carriages,  caissons,  cartridge-boxes,  campaigning  forges,  canteens,  pon- 
toons ;  ordnance  stores ;  portable  range-finders ;  signal  flags  destined  for 
naval  use ;  ammunition  and  explosives  of  all  kinds  and  their  component 
parts ;  machinery  for  the  manufacture  of  arms  and  munitions  of  war ; 
saltpetre;  military  accoutrements  and  equipments  of  all  sorts;  horses 
and  mules. 

Austria-Hungary 

(a)  According  to  theory  and  practice  only  war  material  is  subject  as 
contraband  to  confiscation  pure  and  simple.  Some  Powers,  it  is  true, 
have  placed  in  contraband  called  absolute,  articles  of  double  usage. 
Such  articles  are  not,  however,  generally  considered  as  contraband  in 
the  strict  sense,  their  owners  being  indemnified,  usually,  by  the  captor. 
A  number  of  distinguished  authors  even  limit  the  notion  of  contraband 
to  articles  which,  by  their  nature,  can  be  considered  as  being  bound 
to  aid  the  belligerent  in  hostilities,  that  is,  to  arms  and  munitions  of 
war,  commerce  in  all  other  articles  remaining  entirely  free  {see  Kleen, 
De  la  contrebande  de  Guerre,  1893,  p.  28  et  seq.;  Lois  et  Usages  de  la 
Neiitralitc,  Vol.  1,  p.  397;  de  Boeck,  Propriete  Privee  Ennemie  sous 
Pavilion  Ennemi,  p.  590 ;  Despagnet,  Cour  de  Droit  International  Pub- 
lic, p.  831 ;  Institut  de  Droit  International,  first  draft,  1896,  §  3). 

But  to-day  belligerents  have  recourse,  in  an  increasing  measure,  to 
all  branches  of  agricultural  and  industrial  production  under  the  most 
varied  forms ;  to  equip  and  feed  their  gigantic  armies  the  Powers  are 
forced  to  provide  themselves  with  a  multitude  of  things  which  have 
a  normally  pacific  use  (provisions,  cloth,  raw  materials,  horses,  oil). 


VIEWS  EXPRESSED  BY  THE  POWERS  23 

Even  if  it  seems  logical,  at  first  view,  to  declare  contraband  such  articles 
as  well  as  war  material  it  would  be  dangerous,  all  the  same,  to  extend 
by  international  agreement  the  notion  of  contraband  beyond  war  ma- 
terial properly  so-called. 

To  such  an  extension  can  be  opposed  with  stronger  reason  all  the 
objections  raised  by  the  delegates  of  Great  Britain  in  the  course  of 
the  Second  Peace  Conference  against  the  principle  of  contraband  itself 
(IVth  Commission,  8th  session). 

In  case  the  Powers  should  not  reach  an  agreement  to  abolish  defin- 
itively the  principle  of  contraband  itself  it  would  be  at  least  very  de- 
sirable to  abandon  the  contraband  called  relative. 

Moreover,  serious  considerations  militate  against  the  notion  of 
absolute  contraband.  According  to  the  doctrine  generally  adopted 
contraband  is  characterized  by  the  fact  that  in  carrying  articles  suitable 
for  use  in  war  the  neutral  procures  for  the  consignee  an  advantage 
over  his  enemy.  To  this  end  the  articles  must  actually  fall  into  his 
hands.  The  mere  fact  that  they  are  going  towards  the  enemy  is  not 
sufficient  to  impress  upon  them  the  enemy  character.  If  the  war 
occurs  only  on  land  the  belligerent  ought  not  to  confiscate  blindage  or 
marine  engines,  and  if  the  articles  carried  are  intended  only  to  cross 
enemy  territory,  the  hindrance  put  on  the  shipment  would  scarcely  be 
justifiable.  It  will  perhaps  be  said  that  the  adversary  would  have  to 
fear,  in  this  case,  that  the  enemy  might  seize  them  while  in  transit. 
A  safe-conduct  delivered  by  the  authorities  of  the  enemy  country  and 
produced  by  the  neutral  detained  would,  however,  remove  this  fear. 

It  follows  that  there  exists,  indeed,  only  a  presumable  contraband 
(and  not  an  absolute),  the  transportation  of  war  material  simply 
creating  the  presumption  that  the  articles  en  route  towards  the  enemy 
would  be  employed  in  the  war.  Proof  to  the  contrary  can  not  be 
refused  to  neutrals. 

As  to  the  precise  determination  of  contraband  it  must  be  asked 
whether  it  should  consist  of  a  limiting  enumeration  of  the  articles  of 
contraband  or  in  a  definition.  A  definition  seems  preferable.  Almost 
all  authors,  particularly  the  English  writers,  reject,  with  good  reasons, 
the  "list"  since  an  enumeration  would  be  incomplete  or  at  least  would 
soon  become  so  (see  Perels,  Das  internatiotuile  offentliche  Seerecht, 
p.  238). 

In  case  a  definition  of  contraband  should  be  adopted,  the  Powers 


24  NAVAL  CONFERENCE  AT  LONDON 

would  have  to  abstain  from  notifying,  in  their  proclamations  of  war,  a 
list  of  articles  to  be  confiscated.  The  International  Prize  Court  would 
lack  any  basis  of  jurisdiction  if  belligerents  were  authorized  henceforth 
to  determine  arbitrarily  the  articles  of  contraband. 

Spain 

(A)  In  case  the  Powers  do  not  agree  to  abandon  the  principle  of 
contraband  of  war,  the  latter  will  stand  with  the  following  limitations : 

1.  Only  the  articles   enumerated  by  the   Convention  stipulated  at 

the  Conference  shall  be  considered  as  articles  of  contraband. 
The  list  arranged  by  the  corresponding  subcommittee  of  the 
Second  Peace  Conference  of  1907  shall  serve  as  the  basis  of 
the  enumeration. 

France 

(A)  1.  The  transportation  by  neutrals  of  contraband  of  war  with 
enemy  destination  is  forbidden. 

2.  The  following  articles,  when  destined  for  the  enemy,  are  con- 
sidered contraband: 

Pieces  of  ordnance  and  firearms ; 

Side-arms ; 

Projectiles ; 

Powder  and  other  explosives ; 

Saltpetre ; 

Sulphur ; 

Articles  of  equipment,  of  encampment,  and  of  military  harness , 

All  material  for  military  or  submarine  telegraphy  and  for  use  with 
military  balloons,  as  well  as  all  instruments,  materials,  or  any  articles 
capable  of  being  utilized  for  the  armament  of  vessels  or  for  use  in  war. 

Great  Britain 

The  cases  relating  to  this  subject  decided  in  the  British  courts,  being 
always  concerned  with  some  particular  cargo,  do  not  contain  any  lists 
of  articles  which  may,  or  which  may  not,  be  regarded  as  contraband. 
In  many  cases  the  actual  decisions  relate  to  articles  which  can  not  now 
be  considered  to  be  contraband,  and  to  that  extent  they  must  be  con- 
sidered out  of  date. 


VIEWS  EXPRESSED  BY  THE  POWERS  25 

The  rules  upon  which  the  courts  acted  can,  however,  be  ascertained 
from  the  cases  and  applied  to  the  circumstances  of  the  present  time. 

It  is  believed  that  the  list  of  absolute  contraband  agreed  to  at  the 
Second  Peace  Conference  is  in  exact  accord  with  such  rules. 

1.  The  term  "contraband"  is  applied  to  neutral  property  on  board 
ship  on  the  high  seas  or  in  the  territorial  waters  of  either  belligerent 
which  (1)  is  by  nature  capable  of  being  used  to  assist  in,  and  (2)  is  on 
its  way  to  assist  in,  the  naval  or  military  operations  of  the  enemy. 

2.  In  determining  whether  the  second  of  these  conditions  is  fulfilled 
the  court  is  bound  to  distinguish  between  goods  which  are  primarily 
used  or  particularly  adapted  for  purposes  of  war,  and  goods  which  are 
capable  of  being  used  for  the  purposes  of  either  peace  or  war,  and 
which  do  not  fall  within  the  former  description.  The  former  are 
usually  known  as  absolute  contraband  and  the  latter  as  conditional 
contraband.^ 

Italy 

1.  If  the  articles  considered  as  contraband  in  case  of  war  are 
not  enumerated  by  treaties  previously  concluded  (such  for  example, 
as  art.  15  of  the  Treaty  of  Commerce  and  Navigation  between  Italy 
and  the  United  States  of  America,  February  26,  1871,  and  some  other 
conventions  concluded  by  the  Royal  Government  with  some  of  the 
States  of  South  and  Central  America),  this  specification  shall  be  made 
at  the  beginning  of  hostilities  by  a  special  act  of  the  Government. 

In  default  of  treaties  or  of  a  special  declaration  the  following  articles 
are  considered  as  contraband  of  war :  cannon,  guns,  carbines,  revolvers, 
pistols,  sabres,  and  other  arms,  fire  or  pocket,  of  all  kinds ;  munitions 
of  war;  articles  of  military  equipment  of  all  kinds;  and,  in  general, 
everything  which  can  without  manipulation  serve  immediately  for 
maritime  or  terrestrial  armament.  {Code  of  the  Merchant  Marine, 
October24,  1877,  art.  216.) 

Japan 

I.  Contraband  of  war  is  classed  in  two  general  categories : 

(a)  Absolute  contraband.    Arms,  munitions,  and  other  articles  and 


1  Joyige  Margaretha,  English  Admiralty  Reports,  1  C.  Robinson,  188 ;  C.  S. 
Roscoe,  English  Prize  Cases,  vol.  1,  p.  100;  Neptunus,  3  C.  Rob.  108,  1  E.  P.  C. 
264. 


26  NAVAL  CONFERENCE  AT  LONDON 

materials  employed  immediately  or  ordinarily  in  a  military 
use,  when  they  are  destined  for  the  territory  of  the  enemy 
or  for  a  place  occupied  by  him  or  his  military  or  naval  forces. 
(b)   Conditional  contraband.     ... 

Netherlands 

(1)  The  idea  of  contraband  is  applied  to  the  transportation  on  the 
open  sea  or  in  the  waters  situated  within  the  jurisdiction  of  the 
belligerents,  towards  enemy  territory  of  goods  included  in  the  list  of 
absolute  contraband  inserted  in  the  report  of  the  4th  Commission  of 
the  Second  Peace  Conference. 

Russia 

1.  Art.  I.  It  is,  without  notice,  forbidden  to  transport  to  the  enemy 
the  following  articles  considered  as  absolute  contraband  of  war : 

1.  Arms  of  all  kinds,  mounted  or  in  separate  parts; 

2.  Munitions  of  war  of  all  kinds  ; 

3.  Explosives  and  material  for  their  fabrication ; 

4.  All  material  belonging  to  parts  of  artillery,  of  engineering,  of 

train,  camp  outfit,  material  for  military  aerial  navigation; 

5.  Articles  of  equipment  and  of  military  clothing; 

6.  Horses  and  other  animals,  articles  of  harness,  saddles  and  packs 

suitable  for  use  in  war ; 

7.  Articles  and  materials  serving  for  the  construction  of  railroads, 

or  for  telegraphic  and  radiotelegraphic  or  telephonic  installa- 
tions, as  well  as  for  other  means  of  communication  capable  of 
being  used  in  war; 

8.  Food  specially  suitable  for  the  use  of  the  army ; 

9.  Gold  and  silver,  or  bullion,  as  well  as  money  and  paper  money 

of  all  kinds ; 

10.  Vessels  under  neutral  flag  available  for  use  in  war ; 

11.  Boats  of  all  kinds,  submarine  craft,  floating  docks,  and  parts  of 

docks,  mounted  or  in  detached  parts  available  for  use  in  war; 

12.  Armor  plates ; 

13.  Any  instruments,  materials,  or  articles  serving  for  the  arma- 

ment of  vessels,  or  for  the  manufacture  and  repair  of  arms 
and  of  military  material. 


VIEWS  EXPRESSED  BY  THE  POWERS  27 

It  is  equally  forbidden  to  carry  to  the  enemy  all  other  articles  serving, 
in  general,  exclusively  for  the  use  of  war,  which  the  belligerent  shall 
have  expressly  declared  absolute  contraband  of  war. 


Observations 

All  the  memoranda  start  here  from  the  same  idea,  that  articles  whose 
hostile  character  is  manifest  are  without  notice  liable  to  be  seized  by 
the  belligerent.  It  seems  that  the  following  list,  already  established 
at  The  Hague,  represents,  as  exactly  as  possible,  the  articles  which 
should  be  classed  as  contraband  without  notice  when  they  have  the 
hostile  destination  stipulated  hereafter  {see  No.  4). 

1.  Arms  of  every  kind,  including  arms  for  sporting  purposes  and 

their  unassembled  distinctive  parts ; 

2.  Projectiles,  charges,  and  cartridges  of  all  kinds,  and  their  un- 

assembled distinctive  parts ; 

3.  Powder  and  explosives  specially  adapted  for  use  in  war ; 

4.  Gun-carriages,  caissons,  limbers,  military   wagons,   field   forges, 

and  their  distinctive  parts ; 

5.  Clothing  and  equipment  of  a  distinctly  military  character ; 

6.  All  kinds  of  harness  of  a  distinctly  military  character; 

7.  Saddle,  draft,  and  pack  animals  suitable  for  use  in  war ; 

8.  Articles  of  camp  equipment  and  their  unassembled   distinctive 

parts ; 

9.  Armor  plates ; 

10.  War-ships  and  boats  and  their  unassembled  parts  specially  dis- 

tinctive as  suitable   for  use  only  in  a  war  vessel ; 

11.  Instruments    and    apparatus    made    exclusively    for    the    manu- 

facture of  munitions  of  war,  for  the  manufacture  and  repair 
of  arms  and  of  military  material  for  use  on  land  or  sea. 

Basis  for  discussion 

1.  The  list  of  absolute  contraband  inserted  in  the  proccs-verbal 
of  the  second  meeting  of  the  Committee  on  Contraband  at  the  Second 
Peace  Conference  is  accepted. 


28  naval  conference  at  london 

Observations 

The  general  principle  being  that  in  such  matter  the  justification 
of  the  absolute  character  of  the  contraband  is  the  manifestly  hostile 
nature  of  the  articles,  it  may  be  asked  if  there  now  exist  reasons 
opposed  to  the  principle  that  the  States,  by  means  of  a  notified 
declaration  for  the  purpose  of  avoiding  surprises,  can  add  to  the  list 
of  absolute  contraband  other  articles  made  for  war  exclusively. 

Basis  for  discussion 

2.  Articles  which  are  exclusively  used  for  war  can  he  added  to  the 
list  of  absolute  contraband  by  means  of  a  notified  declaration. 

II — Conditional  Contraband 

Views  expressed  by  the  memoranda 

Germany 

Art.  18.  Other  articles  and  materials  suitable  for  use  in  war  are 
considered  as  contraband  of  war  when  they  are  destined  for  the 
armed  force  or  for  the  services  of  the  State  of  a  belligerent  and  have 
been  by  a  notified  declaration  expressly  qualified  as  contraband  of 
war. 

They  are  comprised  under  the  name  of  relative  contraband. 

United  States  of  America 

Art  2)Z.  The  term  "contraband  of  war"  includes  only  articles 
having  a  belligerent  destination  and  purpose.  Such  articles  are  classed 
under  two  general  heads : 

(2)  ...  Articles  that  may  be  and  are  used  for  purposes  of 
war  or  peace,  according  to  circumstances. 

Articles  of  the  second  class,  when  actually  and  especially  destined 
for  the  military  or  naval  forces  of  the  enemy,  are  contraband  of  war. 

In  case  of  war,  the  articles  that  are  conditionally  and  unconditionally 
contraband,  when  not  specifically  mentioned  in  treaties  previously  made 
and  in  force,  will  be  duly  announced  in  a  public  manner. 

Art.  35.  Until  otherwise  announced,  the  following  articles  are  to 
be  treated  as  contraband  of  war : 


VIEWS  EXPRESSED  BY  THE  POWERS  29 

Conditionally  contraband.  Coal,  when  destined  for  a  naval  station, 
a  port  of  call,  or  a  ship  or  ships  of  the  enemy ;  materials  for  the  con- 
struction of  railways  or  telegraphs,  and  money,  when  such  materials 
or  money  are  destined  for  the  enemy's  forces ;  provisions,  when  actu- 
ally destined  for  the  enemy's  military  or  naval  forces. 

Austria-Hungary 

(A)  1.  ...  In  case  the  Powers  should  not  agree  to  abolish 
definitely  the  principle  of  contraband  itself,  it  would  at  least  be  strongly 
desirable  to  abandon  the  so-called  relative  contraband. 

Spain 

2.  Relative  and  accidental  contraband  is  abolished. 

France 

(A)  2.  .  .  .  Coal  and  petrol  directly  and  solely  destined  for 
the  use  of  a  war  fleet  or  for  a  port  of  war  must  be  signed  as  contraband 
of  war. 

3.  Food  and  raw  materials  intended  for  non-combatants  are  not  in 
principle  considered  as  contraband  of  war,  but  can  be  declared  such 
according  to  circumstances  of  which  the  Government  is  judge  and  in 
virtue  of  an  order  emanating  from  it. 

Great  Britain 

1.  The  term  "contraband"  is  applied  to  neutral  property  on  board 
ship  on  the  high  seas  or  in  the  territorial  waters  of  either  belligerent 
which  (1)  is  by  nature  capable  of  being  used  to  assist  in,  and  (2)  is 
on  its  way  to  assist  in,  the  naval  or  military  operations  of  the  enemy. 

2.  In  determining  whether  the  second  of  these  conditions  is  fulfilled 
the  court  is  bound  to  distinguish  between  goods  which  are  primarily 
used  or  particularly  adapted  for  purposes  of  war,  and  goods  which 
are  capable  of  being  used  for  the  purposes  of  either  peace  or  war, 
and  which  do  not  fall  within  the  former  description.  The  former 
are  usually  known  as  absolute  contraband  and  the  latter  as  conditional 
contraband.^ 


^Jonge  Margaretha,  1  C.  Rob.  188,  1  E.  P.  C.  100;  Neptunus,  3  C.  Rob.  108, 
1   E.  P.  C.  264. 


30  naval  conference  at  london 

Italy 

(a)  I.  In  case  of  war,  if  the  articles  considered  as  contraband 
are  not  enumerated  by  treaties  previously  concluded  (such  for  ex- 
ample, as  art.  15  of  the  Treaty  of  Commerce  and  Navigation  between 
Italy  and  the  United  States  of  America,  of  February  26,  1871,  and 
some  other  conventions  concluded  by  the  Royal  Government  with 
States  of  South  and  Central  America),  this  specification  shall  be  made 
at  the  beginning  of  hostilities  by  a  special  act  of  the  Government. 

Japan 

1.  Contraband  of  war  is  divided  into  two  general  categories: 

(a)  Absolute  contraband.     .     . 

(b)  Conditional  contraband.     Articles  and  materials  other  than 

those  above  described,  which  can  be  used  with  a  military 
purpose,  when  they  are  destined  for  the  military  or  naval 
forces  of  the  enemy. 

Netherlands 

2.  Relative  and  accidental  contraband  are  abolished. 

Russia 

(1)  Art.  2.  The  belligerent  has,  besides,  the  right,  after  previous 
notification,  to  forbid  the  transportation  of  other  articles  susceptible  of 
being  used  in  war  by  an  army  or  fleet,  where  these  articles  are  en  route 
to  armed  forces  of  the  enemy  (relative  contraband  of  war).     .     .     . 

Observations 

Although  there  may  be  the  conventional  suppression  of  conditional 
contraband  desired  by  several  Powers,  it  should  be  stated  that  accord- 
ing to  the  ideas  most  generally  admitted,  the  States  have  the  power 
to  consider  as  such,  articles  susceptible  of  serving  uses  of  war  as 
well  as  inoffensive  uses  when  they  have  a  special  destination  to  the 
military  or  naval  forces  of  the  enemy.  In  the  present  state  of  interna- 
tional commerce  and  in  the  common  interest  of  its  security  it  is  neces- 
sary that  conditional  contraband  be  the  subject  of  a  notified  declaration. 


VIEWS  EXPRESSED  BY  THE  POWERS  31 

Basis  for  discussion 

3.  Articles  suitable  for  use  in  war  as  well  as  for  inoffensive  uses 
may  be  declared  conditional  contraband  when  they  shall  have  the 
special  hostile  destination  specified  above  (see  No.  5).  Notification 
thereof  must  be  given. 

Ill — Destination 
Views  expressed  by  the  memoranda 
Germany 

16.  It  is  forbidden  to  neutral  vessels  going  towards  the  territory  of  a 
belligerent,  or  towards  a  territory  occupied  by  him,  or  towards  his 
armed  force,  to  carry  articles  of  contraband  of  war  which  are  not 
destined  to  be  discharged  in  an  intermediate  neutral  port. 

The  ship's  papers  are  complete  proof  of  the  route  of  the  vessel  as 
well  as  the  place  of  discharge  of  the  cargo,  unless  the  vessel  is  en- 
countered when  she  has  manifestly  deviated  from  the  itinerary  indi- 
cated by  her  ship's  papers  without  being  able  to  prove  a  sufficient 
cause  for  this  deviation. 

18.  Other  articles  and  materials  capable  of  use  in  war  are  considered 
as  contraband  of  war  when  they  are  destined  for  the  armed  forces 
or  for  the  services  of  the  State  of  a  belligerent  and  when,  by  a  notified 
declaration,  they  have  been  expressly  listed  as  contraband  of  war. 
They  are  comprised  under  the  name  of  relative  contraband. 

There  is  a  peremptory  presumption  of  the  destination  cited  in  the 
preceding  paragraph  if  the  consignment  in  question  is  addressed  to 
the  authorities  of  a  belligerent. 

This  destination  is  presumed  if  the  consignment  is  addressed  to  a 
merchant  who  is  known  to  furnish  a  belligerent  articles  and  materials 
of  this  nature.  The  same  presumption  applies  in  the  case  when  the 
consignment  is  destined  for  a  fortified  place  held  by  a  belligerent  or 
for  another  place  serving  as  a  base  of  operations  or  for  supplying  his 
armed  forces,  unless  it  is  a  question  of  establishing  the  contraband 
character  of  the  vessels  themselves  which  are  en  route  towards  one 
of  these  places.  The  presumption  specified  in  this  paragraph  may  be 
rebutted. 


32  naval  conference  at  london 

United  States  of  America 

Art.  33.  ...  Articles  of  the  first  class,  destined  for  ports  of 
the  enemy  or  places  occupied  by  his  forces  are  always  contraband  of 
war. 

Articles  of  the  second  class  when  actually  and  especially  destined 
for  the  military  or  naval  forces  of  the  enemy  are  contraband  of  war. 

Art.  34.  Vessels,  whether  neutral  or  otherwise,  carrying  contraband 
of  war  destined  for  the  enemy  are  liable  to  seizure  and  detention, 
unless  treaty  stipulations  otherwise  provide  (see  Art.  36,  p.  53). 

Austria-Hungary 

(See  p.  22.) 

Spain 

(A)  3.  Contraband  being  limited  to  articles  which  are  used  only  in 
war,  the  fact  of  their  shipment  to  an  enemy  fleet  or  to  points  of  enemy 
territory  or  territory  occupied  by  him  constitutes  in  itself  proof  of  the 
illegal  character  of  the  goods.  If  the  latter,  destined  immediately  for  an 
enemy  point,  are  only  in  transit  and  possess  really  a  final  neutral  des- 
tination, the  consignee  must  show  this  by  previous  notice  to  the  other 
belligerent  and  the  production  of  a  safe-conduct  delivered  by  the  enemy 
whose  territory  must  be  crossed  by  the  goods. 

4.  Notwithstanding  the  paragraph  preceding,  in  order  that  the  rights 
of  the  belligerents  to  suppress  contraband  can  be  exercised,  it  is  neces- 
sary that  the  vessel  on  board  which  the  goods  are  being  forwarded 
be  en  route  directly  towards  the  enemy  fleet  or  point. 

France 

(C)    1.  In  respect  to  transportation  of  contraband: 

The  destination  of  the  goods  decides  its  character  of  contraband. 

The  destination  of  the  vessel  is  insufficient  to  establish  that  of  the  goods 

(see  also  A,  ss.  (1)  and  (2),  p.  24). 

Great  Britain 

3.  There  is  an  irrebuttable  presumption  that  absolute  contraband 
is  on  its  way  to  assist  in  the  operations  of  the  enemy  when  its  desti- 


VIEWS  EXPRESSED  BY  THE  POWERS  33 

nation  is  an  enemy  fleet  or  any  place  in  the  territory  or  in  the  occupa- 
tion of  the  enemy.^ 

4.  There  is  a  presumption  that  conditional  contraband  is  on  its  way 
to  assist  in  the  operations  of  the  enemy  only  if  there  is  proof  that  its 
destination  is  for  the  naval  or  military  forces  of  the  enemy,  or  for 
some  place  of  naval  or  military  equipment  in  the  occupation  of  the 
enemy,  or  if  there  has  been  fraudulent  concealment  or  spoliation  of 
papers.^ 

5.  The  destination  of  the  cargo  is  generally  presumed  to  be  that 
of  the  ship.  Where  the  ship  is  to  call  at  more  than  one  port,  the 
presence  on  board  of  goods  which  are  bona  fide  documented  for  dis- 
charge at  a  neutral  port  before  the  ship  reaches  an  enemy  port,  can  not 
be  made  a  ground  for  detention ;  but,  if  there  is  no  such  documentary 
evidence,  that  port  which  is  least  favourable  to  the  neutral  will  be 
presumed  to  be  the  destination  of  such  cargo  as  would  be  contraband 
if  carried  to  that  port.^  If  it  is  proved  that  the  contraband  cargo  has 
an  ulterior  hostile  destination,  different  from  that  of  the  ship,  to  which 
such  cargo  is  to  be  forwarded  as  part  of  a  single  mercantile  transac- 
tion, the  destination  of  the  ship  will  not  protect  the  cargo/ 

6.  A  ship  carrying  contraband  as  defined  in  Section  1  may  be 
seized  at  any  moment  throughout  the  whole  course  of  her  voyage  so 
long  as  she  is  on  the  high  seas  or  in  belligerent  waters.  The  liability 
to  seizure  is  not  affected  by  the  fact  that  the  vessel  is  intending  to  touch 
at  some  neutral  port  of  call  before  reaching  the  hostile  destination. 


Italy 

(a)  II.  1.  "Neutral  vessels  directed  towards  an  enemy  country, 
whose  cargo  is  formed  in  whole  or  in  part  of  articles  of  contraband 
of  war  shall  be  seized  and  taken  into  one  of  the  ports  of  the  State 
where  the  vessel  and  the  contraband  goods  shall  be  confiscated  and  the 


1  Charlotte,  5  C.  Rob.  305,  1  E.  P.  C.  490. 

^Jonge  Margaretha,  1  C.  Rob.  188,  1  E.  P.  C.  100;  Edward,  4  C.  Rob.  68, 
1  E.  P.  C.  350;  Ringende  Jacob,  1  C.  Rob.  92,  1.  E.  P.  C.  60;  Twende  Brodre, 
4  C.  Rob.  32,  1  E.  P.  C.  332. 

3  See  dicta  of  Lord  Stowell  in  Trende  Sostre,  6  C.  Rob.  391,  note,  1.  E.  P.  C. 
590,  and  Richmond,  5  C.  Rob.  328. 

*Hobbs  V.  Henning,  Law  Journal  Reports,  Common  Pleas,  vol.  34,  p.  117; 
Seymour  v.  London  and  Provincial  Marine  Insurance  Company,  same  series,  vol. 
41,  p.  193;  vol.  42,  p.  111. 


34  NAVAL  CONFERENCE  AT  LONDON 

Other  goods  left  at  the  disposal  of  the  owners."  {Cod.  M.  M.,  art.  215.) 
2.  The  above-mentioned  provision  has  been  interpreted  and  applied 
in  the  sense  that  the  character  of  contraband  of  war  depends  on  the 
final  and  intentional  destination  of  the  cargo  and  not  on  the  immediate 
and  material  destination  of  the  vessel.  In  a  specific  case  it  has  been 
held  that  contraband  exists  when  the  vessel  is  directed  towards  a 
neutral  port  there  to  discharge  the  goods  destined  to  proceed  by  land 
route  to  the  enemy  country  particularly  if  the  country  in  question 
has  no  outlet  on  the  sea.  (Decision  of  the  Prise  Commission,  December 
8,  1896,  capture  of  the  Doelwijk.) 

Japan 

I.  Contraband  of  war  is  divided  into  two  general  categories : 

(a)  Absolute  contraband.  Arms,  munitions,  and  other  articles  and 
materials  employed  immediately  and  ordinarily  for  military 
purposes  when  they  are  destined  for  the  territory  of  the 
enemy  or  for  a  place  occupied  by  him  or  his  military  or  naval 
forces. 

(6)  Conditional  contraband.  Articles  and  materials  other  than 
those  described  above,  which  can  be  used  for  military  pur- 
poses when  they  are  destined  for  the  military  or  naval  forces 
of  the  enemy. 

The  articles  and  materials  above  mentioned  are  considered  as  des- 
tined for  the  mihtary  or  naval  forces  of  the  enemy  when  they  are 
destined  for  his  territory  and  when,  according  to  the  circumstances 
connected  with  the  place  of  destination,  they  can  be  considered  as  in- 
tended for  the  military  use  of  the  enemy. 

II.  When  the  port  of  destination  or  call  of  a  vessel  is  in  the  terri- 
tory of  the  enemy  or  in  a  place  occupied  by  the  enemy,  or  when  there 
are  reasons  to  believe  that  the  vessel  is  going  to  meet  the  military  or 
naval  forces  of  the  enemy,  the  destination  of  the  vessel  is  considered 
to  be  hostile. 

III.  The  destination  of  the  cargo  is  ordinarily  determined  by  the 
destination  of  the  vessel. 

The  goods  found  on  board  a  vessel  are  presumed  to  have  a  hostile 
destination  if  the  destination  of  the  vessel  is  a  place  which,  geograph- 
ically, or  from  other  considerations,  can  be  regarded  as  constituting 


VIEWS  EXPRESSED  BY  THE  POWERS  35 

the  last  halting-place  in  the  transportation  of  the  goods,  whether  by 
transshipment  or  by  land  transport,  to  a  hostile  destination. 

Netherlands 

I.  (1)  The  notion  of  contraband  is  applied  to  the  transportation 
on  the  open  sea  or  in  the  waters  situated  within  the  jurisdiction  of 
the  belligerents,  towards  the  enemy  territory,  of  goods  included  in  the 
list  of  absolute  contraband  inserted  in  the  report  of  the  4th  Commis- 
sion of  the  Second  Peace  Conference. 

III.  (1)  The  theory  of  "continuous  voyage"  is  applied  only  to  the 
transportation  of  contraband  towards  the  enemy  territory  without 
transshipment  in  a  neutral  port. 

Russia 

I.  1.  .  .  .  Articles  of  absolute  contraband  are  subject  to  con- 
fiscation when  they  are  transported  with  destination  of  an  enemy 
country,  a  territory  occupied  by  the  enemy,  or  for  the  armed  forces  of 
the  enemy. 

Art.  2.  The  belligerent  has,  besides,  the  right,  after  previous  noti- 
fication, to  forbid  the  transportation  of  other  articles  suitable  for  use 
in  war  by  an  army  or  a  fleet,  when  these  articles  are  transported  with 
destination  of  armed  forces  of  the  enemy  (relative  contraband  of 
war).  They  are  liable  to  confiscation  if  the  interested  parties  do  not 
prove  that  they  are  not  destined  to  be  used  for  war. 

Art.  3.  Under  the  name  transportation  destined  for  the  armed 
forces  of  the  enemy  is  comprised  the  transportation  of  contraband 
of  war  with  destination: 

(a)  For  the  army  or  fleet  of  the  enemy; 

(b)  For  a  military  port  or  a  place  fortified  by  the  enemy; 

(c)  For  a  port  occupied  by  the  enemy; 

(d)  For  any  other  port  of  the  enemy,  if  the  articles  of  contraband 

are  transported  for  the  enemy  Government  or  its  purveyors. 
Art.  4.  Illegal  destination  in  the  sense  of  Articles  1,  2,  and  3,  is 
considered  as  established  when  the  articles  of  contraband  are  found  on 
board  a  vessel : 

(a)  Which  is  going  directly  towards  an  enemy  country,  a  territory 

occupied  by  the  enemy  or  his  armed  forces ; 

(b)  Which,  while  falsely  declaring  a  neutral  destination,  is,  in  real- 


36  NAVAL  CONFERENCE  AT  LONDON 

ity,  going  towards  an  enemy  country,  a  territory  occupied  by 
the  enemy  or  towards  the  armed  forces  of  the  enemy  ; 
(c)  Whose  destination  is,  in  fact,  a  neutral  port,  if  the  articles  of 
contraband  which  are  found  on  board  are  destined  to  be 
forwarded  finally  by  sea  to  an  enemy  country,  a  territory  oc- 
cupied by  the  enemy  or  to  his  armed  forces. 

Observations 

As  all  the  memoranda  show,  the  simple  hostile  destination  suffices 
for  absolute  contraband,  and  so  far  as  conditional  contraband  is  con- 
cerned a  special  military  destination  is  necessary. 

Basis  for  discussion 

4.  The  simple  destination  to  the  enemy  country  as  well  as  the  des- 
tination to  the  armed  forces  of  the  enemy  or  to  a  territory  occupied 
by  the  enemy,  is  sufficient  to  render  articles  of  absolute  contraband 
liable  to  capture. 

5.  A  special  destination  to  the  armed  forces  of  the  enemy  is  neces- 
sary to  render  articles  of  conditional  contraband  liable  to  capture. 

Observations 

In  view  of  the  development  of  the  means  of  communication  and 
of  the  multiple  ramifications  of  maritime  and  land  traffic  the  experience 
of  recent  maritime  wars  has  led  to  the  application  of  certain  presump- 
tions of  special  military  destination;  but  it  does  not  appear  that  any 
of  these  presumptions  has  had  a  character  absolutely  setting  aside  all 
proof  to  the  contrary  as  it  has  been  proposed  to  agree  to  for  the  future 
in  certain  cases. 

Basis  for  discussion 

6.  There  is  a  presumption  of  the  destination  to  the  armed  forces 
if  the  consignment  is  addressed  to  the  enemy  authorities,  or  to  a 
merchant  who  is  well  known  to  furnish  the  enemy  articles  and  mater- 
ials for  zvar,  or  if  its  destination  is  a  fortified  enemy  place  or  another 
place  serving  as  a  base  of  operations  for  the  armed  enemy  forces, 
unless  it  is  a  question  of  establishing  the  character  of  the  vessel  itself 
which  is  going  towards  one  of  these  places.  In  other  cases  the  des- 
tination is  presumed  innocent.  The  above  presumptions  admit  of 
rebuttal. 


views  expressed  by  the  powers  37 

Observations 

Without  discussing  here  whether  new  principles  should  be  intro- 
duced, it  may  be  stated  that  the  memoranda  purporting  to  represent 
the  existing  rules  are  unanimous  in  considering  that  the  destination 
of  the  goods  proves  its  character  of  contraband. 

Basis  for  discussion 

7.  The  destination  of  the  goods  decides  their  character  of  contra- 
band. 

IV — Penalties 

Views  expressed  by  the  memoranda 

Germany 

21.  Contraband  of  war  is  subject  to  confiscation. 

Goods  not  contraband  of  war  which  are  found  on  board  a  vessel 
and  which  belong  to  the  owner  of  the  contraband  are  also  subject  to 
confiscation  unless  the  provisions  of  paragraph  2  ^  should  be  applied. 

22.  The  vessel  carrying  contraband  of  war  is  liable  to  confiscation: 

1.  If  the  owner,  or  the  charterer  of  the  entire  vessel,  or  the  captain 

has  known  or  ought  to  have  known  of  the  presence  of  the 
contraband  on  board  and  that  this  contraband  forms  by  value, 
weight,  or  volume,  more  than  a  fourth  of  the  cargo ; 

2.  If  the  captain  has  opposed  an  open  resistance  to  the  stopping  of 

the  vessel,  to  the  visit,  or  to  the  capture. 
The  confiscation  mentioned  in  paragraph   1,   No.   1,  is  not  permis- 
sible, if  there  is  occasion  to  apply  the  provisions  of  paragraph  2  of 
Article  21. 

United  States  of  America 
(Nothing) 

Austria-Hungary 

(A)  II.  Theory  and  practice  subject  absolute  contraband  to  con- 
fiscation. Nevertheless  the  right  of  confiscation  can  not  be  logically 
deduced  from  the  notion  of  contraband;  it  is  only  the  result  of  histori- 


1  Confiscation  of  contraband  at  the  opening  of  hostilities :  see  below. 


38  NAVAL  CONFERENCE  AT  LONDON 

cal  development.  In  order  to  justify  this  claimed  right  writers  invoke 
the  legitimate  interest  of  belligerents  to  defend  themselves  against 
neutrals  who  by  their  "commercial  adventures"  would  augment  the 
forces  of  the  enemy.  It  is  clear  that  to  satisfy  this  interest  it  would 
be  sufficient  to  prevent  the  transported  articles  from  falling  into  the 
hands  of  the  adversary  (see  Fauchille,  Revue  Generate  de  Droit  Inter- 
national Public,  1897,  p.  302).  The  right  of  confiscation  greatly  ex- 
ceeds this  interest ;  it  ofifers  even  a  strange  anomaly ;  the  belligerent 
seizes  the  contraband  gratuitously  in  order  that  his  adversary  should 
not  secure  it  by  purchase  (see  Perels,  op.  cit.,  p.  236;  Lehmann,  Die 
Zufuhr  von  Kriegskonterhande ,  1877,  p.  73). 

One  might,  however,  urge  the  military  interest  which  the  belligerents 
have  in  employing  the  articles  seized  in  the  strife.  Is  this  interest 
worthy  to  be  considered  ?  Whatever  it  may  be  it  could  easily  be  taken 
into  account  without  reviving  confiscation  pure  and  simple,  so  onerous 
for  neutrals  who  are  not  held  to  contribute  to  the  costs  of  the  war.  It 
would  suffice  to  oblige  the  beUigerents  to  indemnify  the  owners  of  the 
confiscated  goods.  But  it  is  remarked,  that  in  imposing  this  obliga- 
tion upon  the  belligerents  they  would  often  be  forced  to  purchase 
a  quantity  of  arms  and  munitions  for  which  they  had  no  need,  while 
the  neutrals  would  profit  eagerly  by  the  occasion  to  rid  themselves 
of  them  with  profit. 

To  escape  this  troublesome  consequence,  choice  between  confiscation 
with  indemnity  and  sequestration  could  be  left  to  the  parties  to  the 
strife. 

Spain 

5.  Contraband  once  discharged,  the  responsibilities  which  arise  in 
international  law  from  its  transportation  are  annulled. 

6.  Articles  of  contraband  are  liable  to  confiscation.  Other  goods 
loaded  on  the  same  vessel  are  free,  whether  they  belong  also  to  the 
owner  of  those  articles  or  not. 

7.  Between  the  system  which  authorizes  the  confiscation  of  the 
vessel  carrying  no  diflference  what  quantity  of  contraband  and  the 
system  which  consents  to  such  action  only  when  there  has  been  resist- 
ance or  fraud,  this  formula  of  conduct  can  be  established :  if  the 
captain  or  the  one  who  has  fitted  out  the  vessel  has  known  or  been  in 
a  position  to  know  of  the  presence  of  the  contraband  on  board,  the 
vessel  will  be  responsible  to  the  captor  for  a  ransom  or  compensation 


VIEWS  EXPRESSED  BY  THE  POWERS  39 

equivalent  to  three  times  the  value  of  the  contraband  and  to  five  times 
the  amount  of  the  freight.  If  the  ransom  has  not  been  paid  the  captor 
can,  in  any  case,  proceed  to  measures  of  execution  only  against  the  ves- 
sel and  while  the  latter  remains  in  his  hands. 

France 

(A)  4.  Neutral  contraband  goods  found  on  board  an  enemy  vessel 
is  confiscated.  Neutral  vessels  laden  with  contraband  goods  destined 
for  the  enemy  are  stopped ;  the  said  goods  are  seized  and  confiscated. 
The  vessels  and  the  remainder  of  the  cargo  are  released  unless  the 
contraband  goods  compose  three-fourths  of  the  value  of  the  cargo,  in 
which  case  the  vessels  and  the  cargo  are  confiscated  entirely. 

Great  Britain 

6.  ...  When  the  contraband  goods  have  been  discharged, 
the  liability  to  seizure  is  at  an  end.^  In  exceptional  cases  it  has  been 
held  that  a  ship  which  has  carried  contraband  to  the  enemy  on  her 
outward  voyage  under  circumstances  aggravated  by  fraud  and  simu- 
lated papers  is  still  liable  to  capture  and  condemnation  on  her  return 
voyage.^ 

8.  The  contraband  is  liable  to  condemnation  as  prize.  Any  other 
cargo  on  board  belonging  to  the  owner  of  the  contraband  is  also 
subject  to  condemnation.  Innocent  cargo,  not  belonging  to  the  owner 
of  the  contraband,  will  be  restored  to  its  owner,  but  no  compensation 
will  be  paid  for  loss  arising  from  the  detention  of  the  goods. 

Any  interest  in  the  ship  carrying  the  contraband  which  belongs 
to  the  owner  of  the  contraband  is  also  subject  to  condemnation. 

The  ship  is  also  subject  to  condemnation  if  she  has  made  forcible 
resistance  to  the  captor,  or  if  she  carries  false  or  simulated  papers, 
or  if  there  are  other  circumstances  amounting  to  fraud.  In  the  ab- 
sence of  the  above  conditions  the  ship  will  be  restored,  but  no  com- 
pensation will  be  paid  for  loss  of  freight,  or  for  the  detention.^ 

^  Imina,  3  C.  Rob.  168,  1  E.  P.  C.  289,  and  see  the  reference  to  practice  by 
Lord  Stowell  in  Frederick  Molke,  1  C.  Rob.  86,  1  E.  P.  C.  58. 

^  Nancy,  3  C.  Rob.  122;  Margaret,  1  Acton  333,  2  E.  P.  C.  113. 

sjottge  Tobias,  1  C.  Rob.  329,  1  E.  P.  C.  146;  Staadt  Emden,  1  C.  Rob.  26, 
1  E.  P.  C.  37 ;  Oster  Risoer,  4  C.  Rob.  199,  1  E.  P.  C.  382 ;  Neutralitet.  3  C.  Rob. 
295,  1  E.  P.  C.  309. 


40  naval  conference  at  london 

Italy 

(a)  II.  1.  "Neutral  vessels  going  towards  an  enemy  country,  whose 
cargo  is  formed  wholly  or  in  part  by  articles  of  contraband  of  war, 
shall  be  captured  and  taken  into  one  of  the  ports  of  the  State,  where 
the  vessel  and  the  contraband  goods  shall  be  confiscated  and  the  other 
goods  shall  be  left  to  the  disposition  of  the  owners."  (Cod.  M.  M., 
art.  215.) 

3.  It  has  been  held  also  that  the  vessel  is  not  liable  to  confiscation 
if  it  appears  that  the  owner  did  not  know  the  use  to  which  it  was 
proposed  to  put  his  vessel,  namely,  for  the  transportation  of  con- 
traband. 

Japan 

IV.  Contraband  of  war  and  goods  found  on  board  the  same  vessel 
belonging  to  the  owner  of  the  articles  of  contraband  are  subject  to 
confiscation. 

V.  Vessels  having  contraband  of  war  as  well  as  the  cargo  on  board 
belonging  to  the  owner  of  the  vessel  are  subject  to  confiscation  in  the 
following  cases : 

(a)  When  fraudulent  means  are  employed  in  the  transportation 

of  the  contraband  goods ; 

(b)  When  the  transportation  of  the  contraband  goods  is  the  prin- 

cipal object  of  the  voyage. 
A  vessel  is  also  liable  to  confiscation  when  the  contraband  goods 
found  on  board  belong  to  the  owner  of  the  vessel. 

Netherlands 

I.   (4)   Contraband  is  liable  to  confiscation. 

The  vessel  carrying  the  contraband  is  liable  to  confiscation  only : 

1.  If  an  important  part  of  the  cargo  is  made  up  of  contraband, 
unless  it  appears  that  the  captain,  or  the  charterer,  could  not  have 
known  the  true  character  of  the  cargo ; 

2.  If  the  captain  resists  the  stopping,  the  visit,  or  the  capture  of 
the  vessel. 


views  expressed  by  the  powers  41 

Russia 

I.  Art.  1.  ...  Absolute  contraband  is  subject  to  confiscation 
if  it  is  transported  with  destination  to  an  enemy  country,  a  territory 
occupied  by  the  enemy,  or  by  his  armed  forces. 

Art.  2.  ...  They  (these  articles  of  conditional  contraband) 
are  liable  to  confiscation  if  the  interested  parties  do  not  prove  that  the 
articles  tiansported  are  not  destined  to  be  used  for  war. 

Art.  6.  Merchant  vessels  of  neutral  nationality  are  liable  to  confis- 
cation when  they  carry : 

(a)  Contraband  of  war  forming  by  its  volume,  its  weight,  or  its 

value,  more  than  a  fourth  of  the  whole  cargo ; 

(b)  Articles  of  contraband  even  in  less  quantity  if  their  presence 

on  board  the  vessel  evidently  could  not,  by  their  very  nature 
be  unknown  to  the  captain. 

Art.  7.  The  vessel  carrying  contraband  of  war  in  less  quantity  than 
one-fourth  of  the  cargo  is  liable  to  a  fine  equivalent  to  five  times  the 
value  of  the  contraband  cargo. 

Art.  8.  If  the  confiscation  extends  only  to  the  contraband  cargo, 
and  not  to  the  vessel  on  board  which  it  is  loaded,  this  latter  is  held 
only  until  it  has  delivered  the  contraband  and  paid  the  fine  (Arti- 
cle 7). 

The  contraband  cargo  can  be  delivered  to  the  captor  either  at  the 
very  place  of  the  capture  or  in  a  port  where  the  vessel  can  be  taken 
if  the  captor  judges  it  necessary. 

Art.  9.  The  confiscation  of  the  vessels  and  cargoes  seized  can  take 
place  only  by  virtue  of  a  sentence  of  a  prize  court. 

Art.  10.  If  a  consignment  not  constituting  contraband  of  war  is 
found  on  board  a  captured  vessel,  this  consignment  is  restored  to  the 
owners  without  indemnification. 

Observations 

As  to  contraband,  whatever  it  be,  confiscation  is  unanimously  recog- 
nized as  the  penalty  at  present  applicable. 

Basis  for  discussion 
8.  All  articles  of  contraband  are  liable  to  confiscation. 


42  naval  conference  at  london 

Observations 

The  common  modern  idea  is  to  consider  confiscation  as  a  sanction 
and  not  as  a  benefit  or  a  gratuity  for  the  captor. 

As  for  either  the  vessel  carrying  the  contraband  or  the  goods  other 
than  contraband  found  on  board  the  same  vessel,  confiscation  appears 
subordinated  either  to  the  greater  or  less  importance  of  the  contraband 
in  relation  to  the  expedition,  or  to  a  real  or  presumed  complicity  with- 
out either  the  one  or  the  other  of  these  considerations  in  itself  being 
unanimously  established. 

Basis  for  discussion 

9.  Confiscation  of  the  vessel  carrying  contraband  or  goods  other 
than  contraband  found  on  board  the  same  ship  is  subordinated  to  the 
greater  or  less  importance  of  the  contraband  in  relation  to  the  expe- 
dition or  to  a  real  or  presumed  complicity.  When  complicity  is  re- 
tained as  the  cause  of  confiscation  the  fraudulent  circumstances  cause 
it  to  be  presumed. 

Observations 

Finally  it  is  a  principle  appearing  as  generally  accepted  that  a  cap- 
ture can  not  be  made  on  the  ground  of  a  carriage  of  contraband  pre- 
viously made  and  at  the  time  completed. 

Basis  for  discussion 

.  10.  A  capture  can  not  be  made  on  the  ground  of  a  carriage  of  con- 
traband previously  made  and  at  the  time  completed. 

V — Temporary  Exemption  at  the  Beginning  of  Hostilities 

Viezvs  expressed  by  the  memoranda 

Germany 

21.  .  .  .  Confiscation  is  permitted  only  against  indemnification 
if  at  the  time  the  vessel  v^as  encountered  at  sea  the  captain  did  not 
know  and  was  not  in  a  position  to  know  of  the  opening  of  hostilities, 
or,  when  it  is  a  question  of  articles  or  materials  declared  contraband 
of  war  by  application  of  paragraph  2  of  Article  17  and  of  paragraph 
1  of  Article  18,  did  not  know  and  was  not  in  a  position  to  know  of 
this  declaration,  or,  finally,  if  the  captain  after  having  had  knowledge 


VIEWS  EXPRESSED  BY  THE  POWERS  43 

of  the  Opening  of  hostilities  or  of  the  declaration  had  not  yet  been  able 
to  discharge  the  articles  of  contraband.  Ignorance  is  presumed  if  a 
steamer  is  met  on  the  open  sea  within  eight  days  or  a  sailing  vessel 
within  four  weeks  following  the  opening  of  hostilities  or  the  notifica- 
tion made,  conformably  to  Article  20,  to  the  Power  to  which  it  is 
amenable,  and  without  having  within  this  period  called  at  any  port. 
Proof  to  the  contrary  is  admissible. 

United  States  of  America 
(Nothing) 

Austria-Hungary 
(Nothing) 

Spain 
(Nothing) 

France 
(Nothing) 

Great  Britain 
(Nothing) 

Italy 
(Nothing) 

Japan 

VI.  A  vessel  which  has  contraband  on  board  is  not,  from  this  fact 
alone,  liable  to  capture  if  the  captain  has  no  knowledge,  real  or  pre- 
sumed, of  the  opening  of  hostihties. 

Netherlands 

I.  (5)  The  contraband  captured  can  be  confiscated  only  against 
indemnification  if  the  captain  of  the  vessel  stopped  has  not  known  and 
has  not  been  able  to  know  that  the  war  had  begun. 

Russia 
(Nothing) 

Observations 

As  is  seen,  a  certain  number  of  memoranda  have  not  considered  the 
question  of  temporary  exemption  at  the  opening  of  hostilities.     It  may 


44  NAVAL  CONFERENCE  AT  LONDON 

be  asked,  however,  whether  the  proposition  expressed  by  the  German 
and  Japanese  memoranda  does  not  represent  an  opinion  accepted  to-day 
as  a  necessary  guarantee  of  international  commerce  in  time  of  peace. 

Basis  for  discussion 

11.  There  is  a  temporary  exemption  from  coniiscation  zvhen  the 
vessel  is  encountered  on  the  sea  navigating  in  ignorance  of  the  hos- 
tilities or  of  the  declaration  of  contraband  applicable  to  its  cargo. 

VI — Compensation 

Views  expressed  by  the  memoranda 

Germany 

Art.  27.  When,  the  capture  of  the  vessel  or  of  the  goods  not  having 
been  sustained,  there  is  occasion  for  restitution  of  these  properties  or 
the  payment  of  the  indemnity  in  lieu  thereof,  the  owner  has  a  right 
to  compensation,  provided  the  seizure  has  not  been  brought  about  by 
his  own  fault  or  that  of  the  captain. 

United  States  of  America 
(Nothing) 

Austria-Hungary 

The  rules  of  equity  adopted  in  this  matter  by  practice  require  that 
a  vessel  seized  for  carrying  contraband  be  restored  to  the  owner  in  a 
case  where  the  prize  court  shall  not  have  condemned  it.  If  restoration 
has  become  impossible  the  owner  must  be  reimbursed  in  the  value  of 
the  vessel. 

What  causes  discussion  is  the  question  whether  the  belligerent  must 
also  repair  the  loss  caused  the  owner  by  the  seizure  and  detention  of 
the  vessel.  In  this  regard,  it  seems  that  the  practice  of  the  British 
Prize  Courts  could  be  followed,  ordering  the  reparation  unless  the 
captor  has  good  reasons  to  suspect  the  seized  goods  as  contraband 
(Calvo,  Droit  International,  vol.  IV,  p.  320,  et  seq.).  If  not,  the 
belligerent  must  repair  all  damage  resulting  directly  from  the  un- 
justified seizure  and  retention.  He  would  therefore  have  to  make 
up  for: 


VIEWS  EXPRESSED  BY  THE   POWERS  45 

1.  The  depreciation,  if  any,  of  the  vessel,  provided  it  exceeded  the 

Hmits  of  deterioration  caused  by  ordinary  use  (wear  and  tear)  ; 
when  the  vessel  can  not  be  restored  he  shall  be  held  to  reim- 
burse the  value  which  it  had  at  the  time  of  the  seizure ; 

2.  The  cost  of  the  transportation  of  the  vessel  from  the  last  port 

which  the  vessel  had  left  before  it  was  seized  to  the  moment 
of  restitution  at  the  port  of  origin  in  so  far  as  the  said  trans- 
portation was  effected  at  the  expense  of  the  owner,  for  example, 
with  his  fuel  or  by  his  crew ; 

3.  The  cost  of  the  defense  and  of  the  proceedings  before  the  national 

prize  courts ; 

4.  Interest  counting  from  the  day  when  the  owner  presented  his 

claim  to  the  prize  court  of  first  instance. 

As  to  3  and  4,  it  should  be  remarked : 

The  reimbursement  of  the  costs  of  the  proceedings  and  of  the  de- 
fense before  the  International  Prize  Court  is  regulated  by  article  46 
of  the  Convention  relative  to  the  establishment  of  that  tribunal. 

As  to  the  liquidity  and  the  amount  of  interest  to  be  paid,  Calvo 
observes  (op.  cit.,  vol.  Ill,  p.  430,  et  seq.)  ;  "The  question  of  the 
interest  due  up  to  the  day  of  the  payment  of  the  indemnities  awarded 
seems  no  longer  able  to  raise  any  doubt,  the  rate  to  be  fixed  alone 
causing  discussion.  In  this  matter,  according  to  the  principles  generally 
followed,  the  interest  allowed  is  regulated  ordinarily  according  to 
the  rate  of  commercial  interest  legally  admitted  in  the  debtor  country, 
which  rarely  exceeds  six  per  cent."  The  stipulation  of  such  interest 
would  protect  neutrals  from  injuries  which  the  belligerents  might 
cause  them  by  retarding  the  payment. 

It  may  also  be  asked,  whether  the  belligerent  ought  not  to  in- 
demnify the  owner  for  the  loss  of  profits  occasioned  by  the  detention 
of  his  vessel.  Deprived  of  the  use  of  the  vessel  the  neutral  suffers 
a  sensible  loss  which  it  would  appear  very  unjust  not  to  take  into 
account.  On  the  other  hand  reparation  would  impose  on  the  bellig- 
erents an  onerous  duty ;  likewise  the  fixing  of  the  amount  would  place 
the  prize  courts  in  the  face  of  almost  insurmountable  difBculties. 

The  arbitral  sentence  pronounced  in  the  Alabama  case,  offers  an 
instructive  precedent.  It  related,  it  is  true,  to  reparation  of  damage 
sustained  by  a  belligerent,  not  a  neutral.     But  the  state  of  affairs  was 


46  NAVAL  CONFERENCE  AT  LONDON 

analogous,  the  arbiters  having  been  called  to  decide,  among  other 
things,  on  the  reparation  of  "indirect"  damages.  "The  Tribunal," 
says  Despagnet  (op.  cit.,  p.  819),  "set  aside  the  indirect  claims  whose 
appreciation  is  very  difficult  and  can  lead  to  exaggerated  results." 
On  the  said  decision,  Calvo  makes  the  following  observations  {op. 
cit.,  p.  431)  : 

According  to  the  rules  of  the  law  of  nations  as  well  as  to  those 
of  the  civil  law,  the  reparation  of  the  injury  proven  can  not 
equitably  exceed  the  direct  loss.  Who  does  not  see,  indeed,  that, 
once  engaged  in  the  field  of  hypotheses  concerning  what  the  vic- 
tim, violently  or  unjustly  dispossessed,  would  have  been  able,  cer- 
tain combinations  being  given,  to  make  of  his  property  by  making 
such  or  such  use  of  it,  one  becomes  entirely  arbitrary  in  view  of 
the  impossibility  of  taking  into  account  the  contrary  or  unfavor- 
able circumstances  which,  especially  in  a  commercial  matter,  may 
overturn  the  most  skillfully  contrived  projects  and  calculations. 

Should  the  neutral  then  not  be  indemnified  for  the  loss  of  profits 
for  the  sole  reason  that  these  profits  can  not  be  calculated  to  the 
penny?  It  is  clear  that  the  question  can  not  be  solved  in  the  sense 
of  the  one  or  the  other  alternative,  and  that  equity  demands  a  com- 
promise of  the  interests  at  stake.  Moreover  it  is  evident  that  Calvo, 
in  the  passage  cited,  does  not  at  all  reject,  in  principle,  the  reparation 
of  the  loss  of  profits,  but  only  of  the  profits  which  could  have  been 
obtained  only  in  particular  circumstances  and  whose  amount  escapes  all 
estimate.  If  the  amount  of  the  loss  can  not  be  fixed  in  a  clear  and 
incontestible  manner,  it  could  at  least  be  established  approximately  by 
taking  the  average  of  the  net  earnings  which  the  vessel  has  made  in 
the  course  of  a  certain  number  of  years,  during  the  space  of  time 
corresponding  to  the  period  during  which  the  vessel  was  withdrawn 
from  the  control  of  the  owner.  When,  for  example,  the  vessel  was 
seized  in  March,  1910,  and  restored  in  October  of  the  same  year,  its 
owner  would  only  have  to  show  the  amount  of  net  profits  which 
he  had  drawn  from  the  vessel  in  the  period  from  March  to  October 
in  the  course  of  1909,  1908,  1907  .  .  .  Thus  he  would  receive 
an  indemnification,  at  least  suitable  if  not  complete,  without  the  prize 
court  having  need  of  entering  into  problematic  calculations,  and  the 
belligerent  risking  having  to  pay  exorbitant  sums  in  reparation. 


views  expressed  by  the  powers  47 

Spain 

(A)  8.  It  is  right  that  the  belHgerent  who  exceeds  his  rights  in  the 
process  of  repression  recompense  the  losses  and  injuries  caused.  In 
declaring  the  capture  illegal  the  court  will  determine  if  there  is 
occasion  for  an  indemnity  and  what,  in  favor  of  those  interested  in 
the  vessel  or  cargo  stopped  without  reasonable  cause. 

'    France 

(A)  6.  When  the  examination  of  the  ship's  papers  has  shown  irregu- 
larities which  are  capable  of  raising  legitimate  suspicions  as  to  the 
nationality  of  the  vessel  or  as  to  the  nature  of  the  cargo,  and  when, 
as  a  consequence,  the  capture  has  been  effected,  no  indemnity  is  due, 
even  if  it  should  be  immediately  recognized  that  the  vessel  carried  no 
prohibited  goods. 

The  neutral  whose  property  has  been  seized  on  board  an  enemy  vessel 
has  the  right,  in  principle  only,  to  the  restoration  of  his  goods,  or  in 
case  of  sale,  to  reimbursement  of  the  net  price  arising  therefrom,  with- 
out compensatory  damages,  at  the  expense  of  the  captor. 

The  neutral  whose  vessel  has  been  momentarily  halted  to  permit  the 
seizure  of  contraband  found  on  board  and  not  involving  the  capture 
of  the  vessel,  likewise,  has  no  right  to  compensation. 

When  the  captor  has  deemed  it  necessary,  because  of  military  con- 
siderations, to  destroy  a  prize  at  sea,  the  destruction  is  an  act  of  war, 
which  gives  no  right  of  indemnity  to  the  neutral  owner  of  the  cargo. 

Great  Britain 

9.  If  a  ship  is  brought  in  for  adjudication  on  the  ground  that  she 
was  carrying  contraband,  and  no  part  of  her  cargo  is  condemned,  the 
captor  must  make  full  compensation  for  the  losses  sustained  by  the 
claimants,  unless  there  was  at  the  time  of  seizure  some  evidence  of  facts 
which,  if  established,  would  be  a  ground  for  condemnation,  and  also 
reasons  for  believing  that  upon  further  inquiry  such  facts  would  be 
established.^ 

Italy 

IV.  .  .  .  When  the  capture  has  taken  place  in  the  circumstances 
and  with  the  forms  established  by  international  usage  or  by  treaties 


1  Ostsee,  9  Moore.  P.  C.  150,  2  E.  P.  C.  432;  Leucade,  Spinks  217,  2  E.  P.  C.  473. 


48  NAVAL  CONFERENCE  AT  LONDON 

no  indemnity  can  be  claimed,  even  if  the  prize  court  has  not  decreed 
confiscation.  The  omission  of  some  secondary  formalities,  (concerning, 
for  example,  the  report  of  capture)  could  not  cloud  the  legitimacy  of 
the  capture,  especially  if  it  is  a  matter  of  formalities  established  in  the 
interest  of  the  captor  (such  as  the  affixing  of  seals).  {Comm.  prises, 
December  8,  1906,  cited  above.) 

Japan 

I.  When  it  is  recognized  that  the  seizure  of  a  vessel  for  carrying 
contraband,  for  accomplishment  of  a  service  contrary  to  neutrality, 
or  for  violation  of  a  blockade,  has  been  made  without  reasonable  cause 
of  suspicion,  an  indemnity  should  be  paid  for  the  direct  damages 
caused  by  the  seizure, 

II.  Neutral  vessels,  seized  for  the  following  reasons,  have  no  right 
to  compensatory  damages  by  reason  of  the  seizure; 

(a)   When  fraudulent  ship's  papers  are  produced ; 

(&)   When  they  are  not  supplied  with  the  desired  ship's  papers,  or 

when  these  papers  are  not  produced ; 
(c)  When  the  ship's  papers  have  been  destroyed  or  cancelled,  or 

when  they  are  not  regular ; 
{d)   When  they  are  navigating  under  a  false  flag  or  other  false 

indications. 

Netherlands 

I.  (6)  The  unjustified  capture  or  seizure  of  the  vessel,  or  of  its 
cargo,  gives  occasion  for  a  reparation  of  losses  and  interest.  This 
compensation  is  not  due  if  the  captor  proves  that  the  retention  or 
fraudulent  destruction  of  the  ship's  papers  justified  the  suspicion  of 
contraband. 

Russia 

I.  Art.  10.  If  a  cargo  not  constituting  contraband  of  war  is  found 
on  board  a  captured  vessel,  this  cargo  is  restored  to  the  owners  without 
indemnification. 

Art.  11.  If  the  vessel  or  the  cargo  which  ought  to  be  restored  is 
destroyed  by  the  captor,  or  has  sunk,  or  is  damaged  through  his  fault, 
the  owner  should  be  indemnified  only  for  the  direct  losses  sufifered 
under  this  head. 


VIEWS  EXPRESSED  BY  THE  POWERS  49 

Art.  12.  Independently  of  the  restoration  of  the  vessel,  or  of  the 
cargo,  or  of  their  value,  a  special  indemnity  shall  be  granted  to  the 
owners  if  it  is  estabhshed  that  the  vessel  or  the  cargo  has  been  seized 
without  sufficient  reasons  or  in  violation  of  the  prescribed  rules. 

Observations 

From  the  practices  at  present  followed  the  principle  seems  to  emerge 
that,  in  order  to  give  rise  to  compensation,  the  capture  must  be  in  all 
regards  unjustifiable. 

Basis  for  discussion 

12.  The  right  to  compensation  depends  on  the  question  whether,  in 
the  opinion  of  the  court,  there  are  sufficient  reasons  for  capturing  the 
vessel. 

VII — Convoy 

Viezi's  expressed  by  the  memoranda 

Germany 

7.  Neutral  merchant  vessels  navigating  under  the  escort  of  war 
vessels  of  a  neutral  Power  (convoy)  can  none  the  less  be  stopped, 
subjected  to  visit,  and,  on  occasion,  seized  and  confiscated. 

United  States  of  America 

Art.  29.  The  exercise  of  the  right  of  search  during  war  shall  be 
confined  to  properly  commissioned  and  authorized  vessels  of  war. 
Convoys  of  neutral  merchant  vessels,  under  escort  of  vessels  of  war 
of  their  own  State,  are  exempt  from  the  right  of  search,  upon  proper 
assurances,  based  on  thorough  examination,  from  the  commander  of 
the  convoy. 

Austria-Hungary 

The  former  practice  of  dispensing  with  the  visit  to  neutral  mer- 
chant vessels  escorted  by  a  war  vessel  of  their  own  nationality,  a 
practice  all  but  generally  established,  is  justified  by  the  legitimate 
claim  of  the  neutrals  that  the  naval  officers  ought  to  be  believed  on 
parole.  The  British  Prize  Courts,  alone,  are  opposed  to  this  con- 
tention and  English  authors  approve  their  decisions,  alleging  several 
arguments,  namely: 


50  NAVAL   CONFERENCE  AT  LONDON 

The  commander  may  be  mistaken  as  to  the  character  of  the  cargo ; 
his  affirmation  that  vessels  convoyed  do  not  contain  contraband  is 
without  value,  the  neutrals  limiting  now  and  then  the  notion  of  con- 
traband in  a  manner  not  recognized  by  the  beUigerents ;  the  officer 
may  not  know  whether  there  do  not  exist  particular  circumstances 
justifying,  as  an  exception,  the  seizure  of  the  cargo;  the  vessels  es- 
corted might  leave  the  convoy  before  arrival  at  the  port  of  destination. 

It  is  self-evident  that  a  reform  could,  without  doubt,  take  account 
of  these  just  observations  in  some  respects.  The  most  of  them 
would  lose  all  importance  if  the  notion  of  contraband  were  unani- 
mously fixed,  especially  by  limiting  it  to  war  material. 

Spain 

9.  Merchant  vessels  navigating  in  convoy  under  the  custody  of  one 
or  more  war  vessels  of  their  own  country  are  exempt  from  the  visit 
of  the  belligerents.  (Spanish  Instructions  for  the  Exercise  of  the 
Right  of  Visit,  of  1898,  art.  11.) 

France 

(A)  5.  One  must  abstain  absolutely  from  exercising  the  right  of 
visit  when  the  vessels  are  convoyed  by  a  neutral  war  vessel  of  their 
own  nationality.  One  must  in  such  case  limit  himself  to  requesting 
of  the  commander  of  the  convoy  the  declaration  that  the  vessels  do 
not  belong  to  the  enemy  and  are  not  engaged  in  any  illicit  commerce. 

If,  however,  there  is  occasion  to  suspect  that  the  good  faith  of  the 
commander  of  the  convoy  has  been  imposed  upon,  the  suspicion  must 
be  communicated  to  him ;  it  would  belong  to  him  alone  in  this  case 
to  proceed  to  the  visit  of  the  suspected  vessels. 

Great  Britain 

7.  A  neutral  vessel  is  not  entitled  to  resist  the  exercise  of  the  right 
of  search  by  a  belligerent  war-ship  on  the  ground  that  she  is  under 
the  convoy  of  a  war-ship  of  her  own  nationality ;  forcible  resistance 
by  her  or  by  the  neutral  war-ship  to  the  exercise  of  the  right  of  search 
is  ground  for  condemnation  of  both  ship  and  cargo. ^ 


^  Maria,  1  C.  Rob.  340,  1  E.  P.  C.  152;  Elsabe,  4  C.  Rob.  408,  1  E.  P.  C.  167. 


views  expressed  by  the  powers  51 

Italy 

"III.  Neutral  vessels  under  the  escort  of  war  vessels  shall  be  exempt 
from  all  visit. 

"The  declaration  of  the  commander  of  the  war  vessel  shall  be  suf- 
ficient to  justify  the  flag  and  the  cargo  of  the  escorted  vessels." 
(Cod.  M.  M.,  art.  218.) 

However,  a  written  declaration  can  be  requested  from  him,  con- 
taining the  list  of  vessels  placed  under  his  protection  and  the  assurance 
that  no  article  of  contraband  of  war  for  the  profit  or  destination  of 
the  enemy  is  on  board.  {Instructions  to  the  Commanders  of  the 
Vessels  of  the  Royal  Navy,  on  the  Occasion  of  the  War  Against 
Austria,  approved  by  Royal  Decree,  June  20,  1866,  art.  XI.) 

An  oral  declaration  of  the  commander  is  sufficient  according  to  the 
Treaty  of  Com,merce  and  Navigation  with  the  United  States  of 
February  26,  1871  (art.  12)  ;  a  similar  provision  has  been  put  into 
conventions  concluded  by  the  royal  government  with  States  of  South 
and  Central  America. 

If  there  are  reasons  to  suppose  that  the  good  faith  of  the  com- 
mander of  the  vessel  has  been  abused,  communication  of  these  sus- 
picions shall  be  made  to  the  commander  who  shall  proceed,  alone, 
to  the  visit  of  the  suspected  vessel.     (Instructions,  art.  XL) 

Japan 

A  neutral  vessel  under  convoy  of  a  war  vessel  of  its  own  nationality 
is,  except  in  case  of  grave  suspicion,  exempt  from  search  and  visit 
on  the  part  of  the  belligerent,  if  the  commander  of  the  convoy  declares 
in  writing  that  the  vessel  convoyed  has  no  contraband  on  board,  is 
not  engaged  in  an  attempt  to  violate  a  blockade,  is  not  performing  a 
service  contrary  to  neutrality  for  the  profit  of  the  other  belligerent, 
and  that  her  ship's  papers  are  regular  and  complete.  Said  declara- 
tion must  also  give  the  name  and  nationality  as  well  as  the  ports  of 
departure  and  destination  of  the  vessel. 

Netherlands 

I.  (3)  Neutral  vessels  escorted  by  war  vessels  of  their  own  na- 
tionality are  exempt  from  visit  of  the  commander  if  the  convoy 
declares  that  the  ship's  papers  are  in  order  and  that  there  is  no  con- 
traband in  the  cargo. 


52  naval  conference  at  london 

Russia 

I.  Art.  13.  Merchant  vessels  which  are  convoyed  by  a  neutral  war 
vessel  of  their  own  nationality  are  exempt  from  visit. 

Observations 

The  present  work,  as  has  been  explained  at  the  beginning,  does  not 
have  as  its  object  to  discuss  the  proposition  which  can  be  made  in 
view  of  conventional  arrangements.  On  the  question  of  convoy  the 
memoranda,  which  purport  to  set  forth  the  existing  rules,  recognize, 
with  the  exception  of  the  British  memorandum,  that  the  neutral  vessel 
under  convoy  of  its  own  flag  is  exempt  from  visit.  Can  it  be  said 
that  this  rule  is  at  present  so  extended  that  it  can  be  considered  as 
constituting  a  principle  generally  recognized  in  international  law? 

In  such  case  should  it  not  be  also  recognized  as  an  accepted  usage 
that  in  case  of  suspicion  the  belligerent  can  demand  that  the  com- 
mander of  the  convoy  himself  proceed  to  a  visit? 

Basis  for  discussion 

13.  The  neutral  vessel  under  convoy  of  its  own  flag  is  exempt  from 
visit.  If,  however,  there  is  reason  to  suspect  that  the  good  faith  of 
the  commander  of  the  convoy  has  been  imposed  upon,  the  suspicion 
m.ust  be  conveyed  to  him:  it  is  for  him  alone  to  proceed  to  the  visit 
of  the  suspected  vessels. 

B 

BLOCKADE 

I — Conditions  of  Establishment  and  Character 

Views  expressed  by  the  memoranda 

Germany 

8.  A  blockade  can  not  be  established  by  a  belligerent  except  with 
regard  to  an  enemy  litoral  or  one  occupied  by  him. 

9.  The  blockade  to  be  obligatory  must  be  effective,  declared,  and 
notified. 

10.  The  blockade  is  effective  when  it  is  maintained  by  a  naval  force 
whose  importance  and  position  makes  it  actually  to  interdict  all 
navigation  between  the  sea  and  the  parts  of  the  litoral  blockaded. 


VIEWS  EXPRESSED  BY  THE  POWERS  53 

The  blockade  is  not  considered  as  raised  if  bad  weather  has  com- 
pelled the  blockading  vessels  to  quit  their  position  temporarily. 

United  States  of  America 

Art.  36.  Blockade  is  a  measure  between  belligerents  and  in  order 
to  be  binding  must  be  effective ;'  that  is,  it  must  be  maintained  by  a 
force  sufficient  to  render  hazardous  the  ingress  to  or  egress  from 
a  port. 

If  the  blockading  force  be  driven  away  by  stress  of  weather  and 
return  without  delay  to  its  station,  the  continuity  of  the  blockade  is 
not  thereby  broken.  If  the  blockading  force  leave  its  station  voluntar- 
ily, except  for  purposes  of  the  blockade,  or  is  driven  away  by  the 
enemy,  the  blockade  is  abandoned  or  broken.  The  abandonment  or 
forced  suspension  of  a  blockade  requires  a  new  notification  of  blockade. 

Austria-Hungary 

(B)  The  proposition  presented  by  the  Italian  delegation  to  the 
lid  Peace  Conference  (IVth  Commission,  4th  meeting,  annex  18) 
conforms  to  the  principles  recognized  by  the  authors  and  by  juris- 
prudence. In  consequence  Austria-Hungary  adhered  thereto  in  prin- 
ciple and  has  at  the  present  time  no  reason  to  depart  from  this  point 
of  view.  It  seems  only  desirable  to  define  several  of  the  proposed 
provisions  and  complete  them  in  some  respects.  Here  are  in  short 
the  rules  to  be  formulated : 

The  heading  must  indicate  that  the  provisions  relate  only  to  block- 
ade in  times  of  war. 

The  blockade  is  only  obligatory  when  it  is  limited  exclusively  to 
the  enemy  coasts  or  to  the  coasts  of  a  blockading  belligerent  or  his 
ally,  occupied  by  the  armed  forces  of  the  adversary. 

Spain 

(B)  1.  In  order  that  a  blockade  shall  be  obligatory  for  neutrals, 
these  conditions  are  necessary :  the  declaration,  the  notification,  and 
the  effectiveness.  The  terms  in  which  the  project  presented  by  the 
Italian  delegation  to  the  Second  Peace  Conference  defines  and  Hmits 
each   of   these  conditions,   fixes  the  notion   of   the   transgression   of 


« 


54  NAVAL  CONFERENCE  AT  LONDON 

the  blockade,  and  establishes  the  responsibilities  of  the  transgressing 
vessel  and  cargo,  can  be  considered  as  satisfactory. 

8.  The  incommunicability  with  the  blockaded  coast  does  not  extend 
to  neutral  war  vessels. 

9.  The  blockade  must  be  impartial,  that  is,  be  applied  uniformly 
to  different  flags. 

10.  The  blockade,  effected  according  to  the  above  rules,  is  a  pro- 
ceeding proper  to  a  state  of  war. 

France 
(B)    1.  The  blockade  must  be  notified     .     .     . 

Great  Britain 

1.  A  blockade  is  an  act  of  war  carried  out  by  the  war-ships  of  a 
belligerent  detailed  to  prevent  access  to  or  departure  from  a  defined 
part  of  the  enemy's  coast. 

2.  A  blockade,  in  order  to  be  binding,  must  be  effective,  that  is  to 
say,  it  must  be  maintained  by  a  force  sufficient  to  render  hazardous 
the  ingress  to  or  egress  from  a  port.^ 

3.  If  the  blockade  be  effective,  as  defined  in  section  2,  the  question 
as  to  the  number  and  disposition  of  the  ships  of  the  blockading  force 
is  not  a  matter  for  the  consideration  of  the  court.  Thus  if  the  block- 
ade were  effectively  maintained  by  one  vessel  alone  it  would  be  suffi- 
cient.^ 

4.  A  blockade  must  be  impartially  enforced  against  the  ships  of 
all  nations.^ 

5.  A  blockade  must  be  imposed  by  a  naval  officer  on  the  authority 
of  his  Government ;  in  the  absence  of  express  instructions,  such  author- 
ity will  be  presumed  to  have  been  conferred  upon  any  naval  officer 
in  command  of  a  force  which  is  at  the  time  so  situated  that  he  is 
unable  to  obtain  such  instructions.* 

6.  If  a  blockade  is  imposed  by  a  naval  officer  without  express 
instructions  his  action  must  be  approved  and  adopted  by  his  Govem- 


^  Betsy,  1   C.   Rob.  93,   1   E.   P.   C.  63;  Nancy,  1   Acton  57,  2  E.   P.  C.   106; 
Franciska,  Spinks,  2  E.  P.  C.  Z7i  ct  seq. 

2  Ihid. 

3  Franciska,  Spinks,  293  et  seq.,  2  E.  P.  C.  355  et  seq. 

*Rolla.  6  C.  Rob.  365,  1  E.  P.  C.  573;  Franciska,  Spinks,  114,  2  E.  P.  C.  372. 


VIEWS  EXPRESSED  BY  THE  POWERS  55 

ment,  and  such  approval  and  adoption  will  relate  back  to  the  date 
of  imposition  of  the  blockade.^ 

10.  A  blockade  comes  to  an  end  if  it  is  declared  either  by  the 
blockading-  Government  or  by  the  naval  officer  in  command  of  the 
blockading  force  to  have  been  raised,  or  if  the  blockaded  port  or  terri- 
tory is  occupied  by  the  forces  of  the  blockading  Power,  or  if  the 
blockade  is  not  maintained  effectively  or  enforced  impartially  against 
the  ships  of  all  nations,  or  if  the  blockading  forces  are  driven  off  by  a 
superior  force  or  are  temporarily  withdrawn  for  some  other  service.^ 

11.  A  blockade  is  not  terminated  by  the  fact  that  the  blockading 
ships  are  temporarily  driven  off  by  stress  of  weather,  nor  by  the 
fact  that  vessels  occasionally  succeed  in  getting  in  or  out  of  a 
blockaded  port.' 

Italy 

(b)  I.  1.  Straits  giving  access  to  a  sea  bathing  neutral  States 
can  not  be  blockaded.  (Opinions  of  the  Council  of  Diplomatic  Claims, 
April  11,  1878,  capture  of  the  vessels  Britannia  and  Matilde  Bella- 
gamba.) 

Straits  neutralized  by  provision  of  conventional  law,  also,  are 
exempt  from  the  right  of  blockade. 

2.  The  blockade,  to  be  obligatory,  must  be  effective  and  declared. 
(Cod.  M.  M.,  art.  217.) 

3.  The  blockade  is  effective  when  it  is  maintained  by  the  blockad- 
ing forces  so  disposed  as  to  be  able  to  watch  the  access  to  the  port 
and  the  blockaded  coast  and  see  every  vessel  which  would  seek  to 
land  there  and  to  be  able,  the  occasion  arising,  to  prevent  effectively 
the  entry.  (Service  Regulations  for  Vessels  of  the  Royal  Navy,  Com^ 
missioned  and  in  Reserve,  March  31,  1898,  art.  909,  n.  6;  Cont.  dipl., 
April  11,  1878,  cited  above.) 

(b)  V.  1.  The  cessation  of  the  blockade  must  be  notified  publicly. 
(Regulation,  art.  909,  n.  3.) 


^Rolla,  6  C.  Rob.  365,  1  E.  P.  C.  573:  Franciska,  Spinks,  114,  2  E.  P.  C.  372. 

^Circassian,  Moore,  Intcrnatioial  Arbitrations,  p.  3911;  Hoffnung,  6  C.  Rob. 
112,  1  E.  P.  C.  533;  Franciska,  Spinks,  124,  295,  2  E.  P.  C.  357,  380. 

^Frederick  Molke,  1  C.  Rob.  86,  1  E.  P.  C.  59;  Columbia,  1  C.  Rob.  154.  1 
E.  P.  C.  91 ;  Franciska,  Spinks,  124.  2  E.  P.  C.  380. 


56  NAVAL  CONFERENCE   AT  LONDON 

2.  The  blockade  is  not  regarded  as  raised  and  it  may  be  resumed 
without  further  notification  being  required  when  the  blockading  ves- 
sels have  been  obliged  to  withdraw  temporarily  because  of  circum- 
stances and  not  because  of  acts  of  the  enemy.  (Regulation,  art.  909, 
n.  4.) 

Japan 

I.  The  blockade  is  obligatory  only  if  it  is  maintained  by  a  force 
sufficient  to  present  an  evident  danger  to  a  vessel  trying  to  pass. 

II.  The  blockade  should  not  be  considered  as  raised  by  the  simple 
fact  that  the  blockading  force  temporarily  leaves  the  blockaded  zone 
because  of  stormy  weather  or  for  the  needs  of  the  blockade. 

Netherlands 

II.  (1)  The  blockade  is  an  act  of  war  directed  against  an  enemy 
coast. 

(2)  The  blockade  to  be  obligatory  must  be  effective,  declared,  and 
notified  by  the  belligerent. 

(4)  The  blockade  is  effective  when  it  is  maintained  by  forces  suffi- 
cient and  stationed  in  such  a  way  as  to  be  able  to  prevent  the  entry  into 
and  departure  from  the  blockaded  area. 

Russia 

II.  Art.  1.  The  blockade  to  be  obligatory  must  be  effective,  declared, 
and  notified. 

Art.  2.  The  blockade  is  effective  when  it  is  maintained  by  naval 
forces  of  war  sufficient  effectively  to  forbid  the  passage  between  the 
sea  and  the  blockaded  literal  and  stationed  so  as  to  create  a  real 
danger  for  vessels  which  would  wish  to  try  it. 

The  blockade  is  not  considered  as  raised  if  bad  weather  has  forced 
the  blockading  vessels  to  leave  their  station  temporarily. 

Observations 

The  provision  of  the  Declaration  of  Paris,  1856,  according  to  which 
"blockades,  in  order  to  he  legally  binding,  must  be  effective;  that  is 
to  say  maintained  by  a  force  sufficient  really  to  prohibit  access  to  the 
enemy's  coast,"  having  become  of  general  application,  seems  to  con- 
stitute to-day  a  principle  of  common  law. 


VIEWS  EXPRESSED  BY  THE  POWERS  57 

As  to  whether  the  blockade  is  effective,  examination  of  the  memo- 
randa leads  to  the  conclusion  that  it  is  a  question  of  fact. 

Most  of  the  memoranda  recall  a  practice,  which  seems  general, 
according  to  which  the  blockade  is  not  considered  raised  if  because 
of  bad  weather  the  blockading  forces  are  temporarily  withdrawn. 

In  addition,  the  memoranda  all  agreed  in  recognizing  that  the  block- 
ade must  be  rendered  public. 

Basis  for  discussion 

14.  Conformably  to  the  Declaration  of  Paris,  1856,  blockades  to  be 
legally  binding  must  be  effective,  that  is  to  say,  maintained  by  a  force 
sufficient  really  to  prohibit  access  to  the  enemy  coast. 

15.  The  question  whether  a  blockade  is  effective  is  a  question  of  fact. 

16.  The  blockade  is  not  considered  as  raised  if,  because  of  bad 
weather,  the  blockading  forces  are  temporarily  withdrawn. 

17.  Blockades  to  be  legally  binding  must  be  previously  made  public. 

II — Declaration  and  Notification 

Views  expressed  by  the  m^emoranda 

Germany 

11.  The  declaration  of  the  blockade  shall  be  made  by  the  com- 
mander of  the  blockading  force  or  by  his  Government.  It  must 
indicate  the  precise  moment  of  the  commencement  of  the  blockade 
and  the  exact  limits  of  the  blockaded  coast. 

The  blockade  must  be  notified  to  the  authorities  of  the  place  or 
of  the  coast  blockaded  and  to  the  neutral  Powers.  The  notification 
to  a  neutral  Power  is  made  by  a  communication  addressed  either  to 
the  Government  itself,  or  to  its  diplomatic  representative  near  the 
blockading  belligerent,  or  to  the  consul,  or  to  one  of  the  consuls  of 
the  neutral  Power  who  exercise  their  functions  in  the  place  or  on  the 
coast  blockaded. 

If  the  communication  has  been  made  to  the  local  authorities  only, 
the  blockade  is  immediately  effective  only  with  regard  to  departing 
vessels.  As  to  incoming  vessels  the  blockade  must,  in  this  case,  be 
notified  by  the  blockading  force  to  each  vessel  especially,  and,  if 
possible,  mention  of  this  notification  shall  be  endorsed  on  the  ship's 
papers  by  an  officer. 


58  NAVAL  CONFERENCE  AT  LONDON 

15.  When  neutral  vessels  find  themselves  in  the  blockaded  port  at 
the  moment  of  the  establishment  of  the  blockade,  they  must  be  granted 
a  period  which  should  be  at  least  sufficient  to  permit  them  to  leave 
the  port. 

United  States  of  America 

Art.  38.  The  notification  of  a  blockade  must  be  made  before 
neutral  vessels  can  be  seized  for  its  violation.  This  notification  may  be 
general,  by  proclamation,  and  communicated  to  the  neutral  States 
through  diplomatic  channels ;  or  it  may  be  local  and  announced  to 
the  authorities  of  the  blockaded  port  and  the  neutral  consular  officials 
thereof.  A  special  notification  may  be  made  to  individual  vessels, 
which  is  duly  endorsed  upon  their  papers  as  a  warning.  A  notification 
to  a  neutral  State  is  a  sufficient  notice  to  the  citizens  or  subjects  of 
such  State.  If  it  be  established  that  a  neutral  vessel  has  knowledge 
or  notification  of  the  blockade  from  any  source,  she  is  subject  to 
seizure  upon  a  violation  or  attempted  violation  of  the  blockade. 

The  notification  of  blockade  should  declare  not  only  the  limits  of 
the  blockade,  but  the  exact  time  of  its  commencement  and  duration 
of  time  allowed  a  vessel  to  discharge,  reload  cargo,  and  leave  port. 

Art.  42.  Neutral  vessels  found  in  port  at  the  time  of  the  establish- 
ment of  a  blockade  will  be  allowed  a  specified  number  of  days  from 
the  establishment  of  the  blockade,  to  load  their  cargoes  and  depart 
from  such  port. 

Austria-Hungary 
(B)     .     .     . 

Not  only  the  establishment,  but  also  the  extension,  the  restriction, 
and  the  raising  of  the  blockade  must  be  notified ; 

Every  incomplete  or  false  declaration  must  be  considered  null. 

Spain 

(B)  2.  The  declaration  of  the  blockade  may  be  made  by  the 
superior  officer  of  the  blockading  forces. 

3.  Departure  from  the  blockaded  port  is  permissible  for  vessels 
in  ballast  or  with  a  cargo  which  has  been  taken  on  board  bona  fide  prior 
to  the  declaration  of  the  blockade  or  which  could  not  be  sold  in 
the  blockaded  port. 


views  expressed  by  the  powers  59 

France 

(B)   1.  The  blockade  must  be  notified. 

Besides  the  notification  addressed  to  the  neutral  Governments 
through  diplomatic  channels  (general  notification),  the  establishment 
of  every  blockade  must  be  made  the  object  of  formal  declaration  to 
the  authorities  of  the  blockaded  points.  This  declaration  is  sent 
to  the  said  au<^horities  at  the  same  time  as  to  the  consul  of  one  of 
the  neutral  Powers  by  means  of  a  bearer  of  a  flag  of  truce. 

The  said  declaration  of  blockade  designates  expressly  the  limits 
of  the  blockade  in  longitude  and  latitude. 

The  commander  of  the  naval  forces  there  fixes  a  period  for  de- 
parture for  the  benefit  of  bona  fide  navigation  and  commerce.  This 
period  must  always  be  sufficient  to  protect  them. 

The  same  fonualities  must  be  carried  out  if  the  blockade  is  ex- 
tended to  some  new  point  on  the  coast  or  if  it  is  reestablished  after 
having  been  raised  or  interrupted. 

Great  Britain 

7.  The  officer  in  command  of  the  blockading  force  should  take 
such  steps  as  he  conveniently  can  to  bring  the  blockade  to  the  knowl- 
edge of  the  authorities  of  the  ports  blockaded,  and  also  of  the  foreign 
consuls  in  such  ports. 

8.  When  a  blockade  has  been  imposed  by  the  instructions  of  a 
Government,  or  when  the  action  of  a  naval  officer  in  imposing  a 
blockade  has  been  adopted  and  approved,  the  Government  must  notify 
the  fact  by  the  ordinary  diplomatic  channels  to  neutral  Powers  and 
must  also  publish  the  fact  to  its  own  subjects.^ 

9.  A  notification  of  blockade,  in  order  to  raise  a  presumption  of 
knowledge  of  its  existence,  must  specify  the  limits  of  the  portion  of 
the  coast  blockaded  and  the  time  of  the  commencement  of  the  block- 
ade. 

A  declaration  of  blockade,  or  a  notification  to  a  neutral  Govern- 
ment, or  a  warning  given  to  a  vessel  by  a  war-ship  of  the  blockad- 
ing Power,  must  not  announce  a  blockade  of  greater  extent  than  is 
in  fact  effectively  maintained.^ 


^Neptunus,  2  C.  Rob.  110.  1  E.  P.  C.  195. 

^Hendrick  and  Maria,  1  C.  Rob.  146,  1  E.  P.  C.  84 ;  Franciska.  Spinks,  299, 
2  E.  P.  C.  263. 


60  naval  conference  at  london 

Italy 

(b)  I.  2.  The  blockade  to  be  legally  binding  must  be  effective 
and  declared.    {Cod.  M.  M.,  art.  217.) 

The  blockade  must  be  announced  publicly  by  the  naval  commander 
who  declares  it  by  means  of  a  notification  indicating  exactly  the 
limits  of  its  extension,  the  day  of  its  commencement,  and  the  condi- 
tions to  be  observed  in  crossing  the  line  of  the  blockade.  {Regulation, 
art.  909,  n.  2.) 

The  period  must  also  be  announced  in  which  the  departure  from 
the  port  is  permitted  to  neutral  vessels  that  have  entered  before  the 
commencement  of  the  blockade ;  this  period  must  be  sufficient  to 
protect  bona  fide  navigation  and  commerce.     {Instructions,  art.  VI.) 

Japan 

III.  The  declaration  of  the  blockade  should  indicate  the  precise 
moment  when  the  blockade  begins,  the  extent  of  the  zone  blockaded, 
and  the  period  accorded  to  neutral  vessels  to  leave  the  blockaded  zone. 

IV.  The  declaration  of  blockade  should  be  communicated,  as  soon 
as  possible,  to  the  authorities  of  the  blockaded  locality  as  well  as  to 
the  neutral  States. 

Netherlands 

II.  (2)  The  blockade  to  be  binding  must  be  effective,  declared,  and 
notified  by  the  belligerent. 

(3)  The  declaration  of  blockade  determines: 

The  precise  moment  of  the  commencement  of  the  blockade ; 
A  sufficient  period  in  which  departure  is  permitted  to  neutral 
vessels    which    entered    before    the    commencement    of    the 
blockade ; 
The  limits  embracing  the  region  in  which  the  blockade   will 

be  exercised; 
These  limits  can  not  extend  beyond  a  distance  from  the  coast, 
corresponding  to  the  military  exigencies,  necessary  to  render 
efficacious  the  closing  of  the  enemy  coast. 
(5)  The  blockade  is  notified  to  the  authorities  of  the  blockaded 
coast,  to  the  diplomatic  or  consular  agents,  and  to  the  Governments 
of  the  non-belligerent  Powers. 


views  expressed  by  the  powers  61 

Russia 

II.  Art.l.  The  blockade  to  be  obligatory  must  be  effective,  de- 
clared, and  notified. 

Art.  3.  The  declaration  of  the  blockade  should  determine  the  pre- 
cise moment  of  the  commencement  of  the  blockade,  its  limits,  and 
the  period  in  which  departure  from  the  port  is  permitted  to  neutral 
vessels  which  entered  the  blockaded  locality  before  the  commence- 
ment of  the  blockade. 

Art.  4.  The  declaration  of  the  blockade  must  be  notified  to  the 
Governments  of  the  neutral  States  and,  if  possible,  to  the  authorities 
of  the  locality  blockaded. 

If  the  notification  to  the  Governments  of  the  neutral  States  has  not 
yet  taken  place,  or  if  a  neutral  vessel,  sailing  in  the  blockaded  locality 
or  leaving  it,  proves  that  it  had  no  knowledge  of  the  blockade,  the 
notification  must  be  made  to  the  vessel  itself,  and  if  possible  indorsed 
on  the  ship's  papers. 

Observations 

The  different  memoranda  appear  to  employ  the  words  "declaration" 
and  "notification"  in  meanings  sometimes  alike  and  sometimes 
different. 

To  avoid  all  confusion  it  is  useful  first  of  all  to  define  them : 

By  the  word  "declaration"  it  seems  that  one  should  mean  ex- 
clusively the  act  by  which  the  blockading  Power,  or  the  naval  author- 
ities acting  in  its  name,  officially  promulgates  the  blockade. 

By  the  word  "notification,"  the  act  by  which  the  blockading  Power 
gives  to  the  interested  parties  communication  of  the  declaration. 

It  does  not  seem  that  any  practice  followed  now  is  opposed  to 
the  declaration  of  blockade's  being  made  by  the  naval  authorities, 
as  well  as  by  the  Government  of  the  belligerent. 

As  to  the  matters  that  the  declaration  should  contain,  all  the  memo- 
randa agree  to  recognize  that  the  declaration  must  indicate: 

1.  the  date  and  hour  of  the  commencement  of  the  blockade  ; 

2.  the  geographical  limits  of  the  blockaded  coast. 

Moreover  the  general  practice  has  always  been  to  grant  a  reason- 
able period  for  departure  to  neutral  vessels ;  the  length  of  time  is  fixed 
in  the  declaration. 


62  NAVAL  CONFERENCE  AT  LONDON 

Finally,  the  declaration  of  the  blockade  should  be  notified  to  the 
authorities  of  the  blockaded  places  as  well  as  to  the  neutral  Powers. 

It  appears  also  to  be  the  general  practice  that  the  preceding  rules 
are  applied  in  case  of  extension  of  the  blockade  or  the  reestablishment 
of  it  after  cessation. 

Basis  for  discussion 

18.  The  declaration  of  blockade  is  made  either  by  the  blockading 
Poiver  or  by  the  naval  authorities  acting  in  its  name.    It  specifies: 

1.  the  date  and  the  hour  of  the  commencement  of  the  blockade; 

2.  the  geographical  limits  of  the  blockaded  coast; 

3.  the  period  allowed  neutral  vessels  for  departure. 

19.  The  declaration  of  blockade  is  notified: 

1.  to  the  local  authorities ; 

2.  to  the  neutral  Poivers. 

20.  The  preceding  rules  are  applicable  in  case  of  extension  of  the 
blockade  or  of  reestablishment  thereof  after  cessation. 

Ill — Liability  to  Seizure 

Views  expressed  by  the  tnemoranda 

Germany 

11.  .  .  .  If  the  communication  has  been  made  to  the  local  au- 
thorities only,  the  blockade  is  effective  immediately  only  with  regard  to 
departing  vessels ;  as  for  incoming  vessels,  the  blockade  must  in  this 
case  be  notified  by  the  blockading  force  to  each  vessel  specially,  and 
if  possible,  mention  of  this  notification  shall  be  written  by  an  officer 
on  the  ship's  papers. 

13.  .  .  .  The  vessel  and  the  goods  are  not  subject  to  confiscation 
if  the  captain  has  not  known  of  the  establishment  of  the  blockade, 
unless  this  ignorance  is  chargeable  against  him.  In  respect  to  enter- 
ing vessels  the  ignorance  is  presumed  unless  it  is  proven  to  the 
contrary : 

1.  If  the  vessel  has  gone  to  sea  before  the  establishment  of  the 

blockade  and  since  its  departure  has  not  called  at  another  port. 

2.  If  there  has  been  no  other  notification  of  the  blockade  to  the 

neutral   Power  to  which  the  vessel  is  amenable  than  a  com- 
munication addressed  to  its    consular    representative    (Article 


VIEWS  EXPRESSED  BY  THE  POWERS  63 

11,  paragraph  2),  of  which  the  latter  has  not  yet  had  oppor- 
tunity to  inform  his  Government. 

Moreover,  the  goods  are  not  subject  to  confiscation,  if  the  owner 
proves  that,  at  the  time  the  vessel  put  to  sea,  he  did  not  know  and 
should  not  have  known  of  the  establishment  of  the  blockade. 

12.  .  .  ,  The  capture  is  permitted  only  so  far  as  the  vessel 
tries  to  cross  the  lines  of  the  blockade  or  as  it  is  pursued  in  flagranti 
by  a  vessel  of  the  blockading  force. 

United  Stx\tes  of  America 

Art.  39.  Vessels  appearing  before  a  blockaded  port,  having  sailed 
before  notification,  are  entitled  to  special  notification  by  a  blockading 
vessel.  They  should  be  boarded  by  an  officer  who  should  enter  upon 
the  ship's  log  or  upon  its  papers,  over  his  official  signature,  the  name 
of  the  notifying  vessel,  a  notice  of  the  fact  and  extent  of  the 
blockade,  and  of  the  date  and  place  of  the  visit.  After  this  notice 
an  attempt  on  the  part  of  the  vessel  to  violate  the  blockade  makes 
her  liable  to  capture. 

Art.  40.  Should  it  appear  from  the  papers  of  a  vessel,  or  other- 
wise, that  the  vessel  had  sailed  for  the  blockaded  port  after  the  fact 
of  the  blockade  had  been  communicated  to  the  country  of  her  port  of 
departure,  or  after  it  had  been  commonly  known  at  that  port,  she  is 
liable  to  capture  and  detention  as  a  prize.  Due  regard  must  be  had 
in  this  matter  to  any  treaties  stipulating  otherwise. 

Art.  41.  A  neutral  vessel  may  sail  in  good  faith  for  a  blockaded 
port,  with  an  alternative  destination  to  be  decided  upon  by  information 
as  to  the  continuance  of  the  blockade  obtained  at  an  intermediate 
port.  In  such  case  she  is  not  allowed  to  continue  her  voyage  to 
the  blockaded  port  in  alleged  quest  of  information  as  to  the  status 
of  the  blockade,  but  must  obtain  it  and  decide  upon  her  course  before 
she  arrives  in  suspicious  vicinity;  and  if  the  blockade  has  been 
formally  established  with  due  notification,  sufficient  doubt  as  to  the 
good  faith  of  the  proceeding  will  subject  her  to  capture. 

Art.  43.  The  liability  of  a  vessel  purposing  to  evade  a  blockade, 
to  capture  and  condemnation,  begins  with  her  departure  from  the 
home  port  and  lasts  until  her  return,  unless  in  the  meantime  the 
blockade  of  the  port  is  raised. 


64  naval  conference  at  london 

Austria-Hungary 

(B)  .  .  .  Ignorance  of  the  blockade  shall  be  presumed  when 
the  ship  arrested  has  left  the  last  port  before  the  blockade  was  notified 
and  it  does  not  happen  from  the  circumstances  that  it  has  learned  of 
the  establishment  of  the  blockade  in  the  course  of  the  voyage. 

Spain 

(B)  4.  The  transshipment  of  goods  in  proximity  to  the  line  of 
blockade  in  order  to  cross  the  latter  with  small  boats  is  punishable. 
It  will  be  the  same  for  taking  up  a  position  in  the  neighborhood  of 
the  line  with  the  object  of  profiting  from  the  opportunity  to  run  it. 

5.  The  vessel  which,  after  having  run  or  tried  to  run  the  blockade 
and  being  pursued  by  the  blockading  vessels,  is  lost  to  view  by  them, 
or  succeeds  in  gaining  an  open  port,  becomes  free. 

France 

(B)  1.  .  .  .  Vessels  which  are  sailing  towards  a  blockaded 
port  are  only  supposed  to  know  of  the  state  of  blockade  when  the 
notification  thereof  has  been  entered  in  writing  on  their  log  book  by 
a  war  vessel  forming  the  blockade  (special  notification).  This  noti- 
fication must  always  mention  the  date  and  the  geographical  position  of 
the  place  where  it  has  been  made. 

2.  Violation  of  a  regularly  established  blockade  results  from  the 
attempt  to  penetrate  into  the  blockaded  places  as  well  as  from  the 
attempt  to  leave  them  after  the  declaration  of  the  blockade,  unless 
this  be  within  the  period  allowed  for  leaving.  The  seizure  of  the 
vessels  can,  in  consequence,  be  effected  only  within  the  radius  of 
action  of  the  war  vessels  charged  with  assuring  the  reality  of  the 
blockade. 

The  vessel  which  has  crossed  the  line  but  is  still  pursued  is  a  good 
prize.    If  the  chase  is  abandoned  the  capture  can  not  be  made  later. 

Great  Britain 

15.  A  vessel  can  not  be  guilty  of  breach  of  blockade  unless  she 
has  had  notice  of  its  existence.    Notice  may  be  actual  or  presumptive.^ 


1  Betsy,  1  C.  Rob.  93,  1  E.  P.  C.  63. 


VIEWS  EXPRESSED  BY  THE  POWERS  65 

16.  The  master  of  a  vessel  will  be  held  to  have  had  actual  notice  if 
he  is  proved  to  have  had  knowledge  of  the  blockade,  however  ac- 
quired.^ 

17.  Notice  will  be  presumed: 

(1)  If  notification  of  the  blockade  has  been  made  to  the  proper 
authorities  of  the  State  from  whose  port  the  vessel  last  sailed, 
and  sufficient  time  has  elapsed  for  such  authorities  to  notify 
the  information  at  that  port  before  the  vessel  sailed;- 

(2)  If  the  blockade,  whether  notified  or  not,  be  proved  to  have  been 
notorious  at  the  port  from  which  the  vessel  last  sailed  before 
her  departure  f 

(3)  If  the  master  refuses  to  attend  to  the  summons  of  a  war-ship 
of  the  blockading  force. 

18.  In  the  absence  of  notice,  either  actual  or  presumptive,  a  vessel  is 
entitled  to  be  warned  of  the  blockade  by  a  war-ship  of  the  blockading 
force.  No  evidence  of  such  warning  will  be  accepted  unless  it  has 
been  indorsed  on  the  ship's  papers.* 

19.  A  vessel,  unless  compelled  by  stress  of  weather  or  other  neces- 
sary cause,  is  guilty  of  breach  of  blockade  if,  with  notice  of  the 
blockade : 

(1)  She  comes  or  attempts  to  come  out  of  a  blockaded  port  after 
the  expiration  of  such  time  as  may  have  been  allowed  for  egress 
from  that  port ; 

(2)  She  goes  or  attempts  to  go  into  a  blockaded  port ; 

(3)  Approaches  a  blockaded  port  in  order  to  enquire  as  to  the  con- 
tinuance of  the  blockade;^ 

(4)  Remains  in  the  vicinity  of  a  blockaded  port  in  such  a  position 
as  to  be  able  to  take  advantage  of  any  opportunity  to  enter,  or 
to  take  up  a  cargo  from,  or  to  discharge  a  cargo  into,  lighters 
or  similar  craft  which  might  succeed  in  breaking  the  blockade.^ 


1  Franciska,  Spinks,  298,  2  E.  P.  C.  361. 

^Neptunus,  2  C.  Rob.  110,  1  E.  P.  C.  195;  Adelaide,  ibid.,  note;  Jonge  Petro- 
nella.  2  C  Rob.  131,  1  E.  P.  C.  208. 
8  Ibid. 

*Neptunus,  2  C.  Rob.  110,  1  E.  P.  C.  198. 

«  Spes  and  Irene,  5  C.  Rob.  77,  1  E.  P.  C.  427 ;  Union,  Spinks,  164. 
«  Charlotte  Christine,  6  C.  Rob.  101. 


66  NAVAL  CONFERENCE  AT  LONDON 

21.  Breach  of  Blockade  Inwards.  When  there  exists  the  inten- 
tion to  break  the  blockade  if  an  opportunity  should  occur,  the  act  of 
sailing  towards  the  blockaded  port  is  an  overt  act  sufficient  to  put 
the  vessel  in  delicto  until  that  intention  is  abandoned.  But  if  the 
ship's  papers  and  the  evidence  of  the  master  and  crew  are  consistent 
with  an  alternative  destination,  or  an  intention  to  inquire  at  some  open 
port  not  near  the  blockaded  port  as  to  the  continuance  of  the  blockade, 
then  the  vessel  is  presumed  to  have  an  innocent  intention,  unless  she 
has  reached  a  position  inconsistent  with  a  course  to  such  open  port.^ 

22.  Breach  of  Blockade  Oiitzvards.  A  ship  which  has  succeeded 
in  getting  out  of  a  port  by  violating  the  blockade  is  subject  to 
capture  until  the  end  of  the  voyage,  whether  it  has  touched  at  an 
intermediate  port  or  not. 

Italy 

(6)  II.  A  blockade  is  known  undeniably  by  a  vessel  sailing  towards 
a  blockaded  port  only  after  it  has  received  a  special  notification 
thereof.  Therefore,  each  vessel  presenting  itself  before  the  line  of 
the  blockade  must  be  informed  by  one  of  the  blockading  war  vessels, 
of  the  existence  of  the  blockade  and  of  the  circumstances  under 
which  it  has  been  established.  Mention  of  this  notice  must  be 
written  on  the  ship's  papers  of  the  vessel.  Without  this  the  vessel 
can  not  be  proceeded  against  under  the  head  of  violation  of  block- 
ade.    (Instructions,  art.  VII ;  Regulation,  art.  909,  n.  5.) 

The  Treaty  of  Cotmnerce  and  of  Navigation  in  force  with  the 
United  States  of  America  (art.  14)  and  other  conventions  con- 
cluded by  the  royal  government  with  some  of  the  States  of  South  and 
Central   America  contain  analogous   provisions. 

(b)  III.  1.  The  destination  of  the  vessel  to  the  blockaded  port 
is  not  sufficient  reason  for  considering  it  guilty  of  violation  of 
blockade. 

The  vessel  seized  at  the  moment  of  crossing  the  line  of  an  effective 
and  declared  blockade  is  guilty  of  violation  of  blockade  whether  it 


1  Columbia,  1  C.  Rob.  154,  1  E.  P.  C.  89 ;  Vrouw  Johanna,  2  C.  Rob.  109,  1 
E.  P.  C.  194;  Imina,  3  C.  Rob.  167,  1  E.  P.  C.  289;  James  Cook,  Edw.  261,  2 
E.  P.  C.  53 ;  Little  William,  1  Acton  141 ;  Dispatch,  1  Acton  163 ;  Haabet,  6 
C.  Rob.  54,  1  E.  P.  C.  524;  Gliertigheit,  6  C.  Rob.  58,  1.  E.  P.  C.  527;  Aline  and 
Fanny,  Spinks,  322,  2  E.  P.  C.  537 ;  Fortuna,  Spinks,  307. 


VIEWS  EXPRESSED  BY  THE  POWERS  67 

is  trying  to  enter  the  blockaded  place  or  to  leave  it.     {Cod.  M.  M., 
art.  217;    Instructions,  art.  VIII.) 

2.  A  vessel  trying  to  leave  the  blockaded  port  can  be  seized  even 
outside  the  line  of  the  blockade,  provided  it  has  been  pursued  to 
the  moment  of  crossing  and  overtaken  before  it  has  been  able  to 
reach  a  neutral  port.  If  the  vessel  has  been  able  to  cross  the  line 
of  the  blockade  without  difficulty  and  without  hindrance,  it  shall 
no  longer  be  liable  to  seizure,  even  if  it  arrives  at  a  port  of  the 
blockading  Power.     (Cont.  dipL,  April  11,  1878,  cited  above.) 

Japan 

V.  Vessels  must  be  considered  as  having  knowledge  of  the  exist- 
ence of  the  blockade  in  the  following  cases : 

(a)  When  they  are  found  within  the  limits  of  the  blockaded  zone; 

(b)  When  they  come  from  a  locality  where  the  existence  of  the 

blockade  is  generally  known. 
A  vessel  is  reputed  to  have  knowledge  of  the  existence  of  a 
blockade  when  the  declaration  of  blockade  has  been  communicated 
to  the  competent  authorities  of  the  State  to  which  the  vessel  belongs, 
and  a  sufficient  period  must  have  elapsed  to  permit  the  authorities 
to  give  public  notice  of  the  said  blockade. 

VI.  A  vessel  encountered  approaching  a  blockaded  zone,  if  it 
has  no  knowledge,  real  or  presumed,  of  the  existence  of  the  block- 
ade, must  receive  the  special  notification  thereof  by  an  officer  of 
the  blockading  force,  and  the  said  notification  must  be  entered  on 
the  ship's  papers. 

Netherlands 

II.  (6)  The  blockade  is  applied  to  merchant  vessels  which  could 
not  have  known  of  the  establishment  of  the  blockade,  only  after 
they  shall  have  been  advised  of  it  by  one  of  the  blockading  vessels. 
This  notification  shall  be  endorsed  on  the  ship's  papers. 

(7)  The  violation  of  the  blockade  takes  place  at  the  moment 
of  the  crossing  of  the  line  of  the  blockade.  A  pursuit  for  violation 
of  blockade  can  extend  beyond  the  line  of  the  blockade  but  shall 
end  as  soon  as  the  vessel  shall  have  reached  an  open  port  or  at  the 
prior  moment  of  the  raising  of  the  blockade. 


68  naval  conferr:nce  at  london 

Russia 

II.  Art.  4.  ...  If  the  notification  to  the  Governments  of 
the  neutral  States  has  not  yet  taken  place,  or  if  a  neutral  vessel 
sailing  towards  the  blockaded  locality  or  leaving  it,  proves  that  it 
had  no  knowledge  of  the  blockade,  the  notification  must  be  made 
to  the  vessel  itself,  and,  if  possible,  written  on  the  ship's  papers. 

Art.  5.  Every  vessel,  which,  after  the  notification  of  the  blockade, 
sails  towards  a  blockaded  locality,  or  which  tries  to  run  the  blockade, 
may  be  seized  for  violation  of  the  blockade. 

Art.  6.  The  destination  in  a  blockaded  locality  is  considered  es- 
tablished when  the  vessel : 

(a)   Is  going  directly  towards  a  blockaded  locality,  or 

(&)  In  spite  of  its  apparently  lawful  destination  it  is,  in  fact,  going 
to  a  blockaded  locality. 

Observations 

As  all  the  memoranda  show,  the  question  of  liability  to  seizure 
can  be  considered  from  the  point  of  view : 

(a)  of  the  knowledge  of  the  blockade  by  the  vessel  prior  to  the 
violation ; 

(b)  of  the  place  where  the  seizure  can  be  made. 

(a)  Knowledge  of  the  blockade.  The  following  general  principle 
can  apparently  be  drawn  from  all  the  memoranda,  that  the  liability 
of  a  neutral  vessel  to  seizure  for  violation  of  blockade  is,  before  all, 
subordinated  to  the  knowledge  itself  of  the  blockade. 

It  is  clear  on  the  other  hand  that  if  the  vessel  has  personally  received 
individual  notification  of  the  blockade  it  can  not  allege  its  ignorance. 

In  presence  of  the  modern  development  of  rapid  communication  can 
one  go  farther?  And  does  there  exist  at  present,  as  appears  to  be  the 
thought  of  the  majority  of  the  memoranda,  some  common  idea  on  the 
point  of  knowing  whether  and  when  the  knowledge  of  the  blockade 
can  be  presumed  and  what  is  then  the  nature  of  the  presumption  ? 

Basis  for  discussion 

21.  The  liability  of  a  neutral  vessel  to  capture  for  violation  of  block- 
ade is  contingent  on  her  knowledge  of  the  blockade. 


VIEWS  EXPRESSED  BY  THE  POWERS  69 

22.  Knowledge  of  the  blockade  is  presumed  when  the  vessel  has  left 
her  last  port  of  departure  after  the  notification,  in  sufficient  time,  of 
the  blockade  to  the  authorities  of  the  said  port. 

23.  The  vessel  which  has  received  personally  individual  notification 
of  the  blockade  can  not  argue  her  ignorance.  This  notification  must 
be  entered  on  the  ship's  papers,  with  indication  of  the  date  and  of  the 
hour  as  well  as  the  geographical  position  of  the  vessel  at  that  moment. 

Observations 

(b)  Place  of  Capture.  If  one  examines  attentively  what  capture 
is  intended  to  sanction,  one  can  not  deny  that  it  is  assuredly  the  inter- 
diction which  the  blockade  proclaims,  that  is  to  say,  the  interdiction  to 
arrive  at  the  blockaded  place.  If  at  times,  by  reason  of  the  tactical 
disposition  of  the  blockading  force,  it  may  be  considered  that  the 
latter,  in  fact,  forms  a  barrier  or  line  the  approach  to  which  it  watches, 
it  is  not  to  be  forgotten  that,  properly  speaking  it  is  not  the  passage 
itself  of  this  line  which  is  the  object  of  this  interdiction  but  always 
indeed  the  arrival  at  the  blockaded  place. 

On  the  other  hand,  it  has  long  been  uncontested  that  the  violation  of 
a  blockade  presupposes  that  the  blockade  is  effective,  that  is  to  say,  that 
the  interdiction  is  really  maintained  by  a  force  sufficient  to  assure  its 
respect. 

Starting  from  these  common  ideas,  the  Governments  have  separately 
followed  the  application  thereof,  by  ways,  with  the  aid  of  which,  the 
doctrinal  analysis  of  the  authors  has  little  by  little  built  up  systems 
which  have  rather  obscured  than  clarified  the  results  practically  es- 
tablished. 

In  reality  vessels  condemned  for  violation  of  blockade  are  captured 
before  having  actually  accomplished  the  forbidden  act,  that  is,  before 
having  reached  the  blockaded  place,  however  near  they  may  have  been 
able  to  come. 

What  capture  requires  is  that  the  act  of  violation  be  manifestly 
characterized,  and  that  the  sanction  correspond  truly  to  the  infraction. 

It  is  only  in  proportion  as  the  vessel  approaches  the  blockaded  place 
that  the  infraction  is  characterized,  up  to  the  moment  when  the  expedi- 
tion destined  for  the  blockaded  port  arrives  within  the  radius  of  action 
of  the  blockading  force,  and  then  the  infraction  becomes  manifest,  the 
capture  is  justified. 


70  NAVAL  CONFERENCE  AT  LONDON 

If  these  considerations  are  correct,  it  seems  that  the  views  expressed 
in  the  different  memoranda  could  be  advantageously  related  to  their 
common  origin  and  would  be  able  to  meet  in  an  equally  common 
formula  announcing  what  is,  in  sum,  the  practical  result  in  which 
they  would  always  appear  to  end. 

Basis  for  discussion 

24.  The  seizure  of  neutral  vessels  for  violation  of  blockade  can  only 
he  effected  within  the  radius  of  action  of  the  war  vessels  charged  with 
assuring  the  reality  of  the  blockade. 

25.  The  vessel  which,  in  violation  of  the  blockade,  has  left  the  block- 
aded port  reino/ins  liable  to  seizure  as  long  as  it  is  pursued.  If  the 
chase  is  abandoned  the  capture  can  not  be  made  later. 

Observations 

A  certain  number  of  memoranda  have  considered  the  case  where, 
because  of  distress,  a  neutral  vessel  shall  see  itself  forced  to  give  up 
in  a  blockaded  locality.  It  is  permitted  to  think  in  such  a  place  that 
an  exceptional  favor  is  in  accordance  with  the  universal  sentiments  of 
humanity. 

Basis  for  discussion 

26.  A  neutral  vessel,  in  case  of  distress,  may,  with  the  consent  of  the 
commander  of  the  blockading  force,  enter  the  blockaded  locality. 

IV — Penalty 

Views  expressed  by  the  memoranda 

Germany 

12.  The  vessel  which  violates  the  blockade  is  liable  to  confiscation. 
It  is  the  same  with  respect  to  goods  found  on  board. 

The  capture  is  permitted  only  in  so  far  as  the  vessel  tries  to 
cross  the  lines  of  the  blockade  or  as  it  is  pursued  in  flagrante  by  a 
vessel  of  the  blockading  force. 

13.  The  vessel  and  the  goods  are  not  liable  to  confiscation  if  the 
captain  has  not  known  of  the  establishment  of  the  blockade  unless 


VIEWS  EXPRESSED  BY  THE  POWERS  71 

this  ignorance  can  be  charged  against  him.     As  to  incoming  vessels, 
ignorance  is  presumed  unless  proof  is  addressed  to  the  contrary : 

(1)  If  the  vessel  has  put  to  sea  before  the  establishment  of  the 
blockade  and  has  not  since  its  departure  called  at  any  port ; 

(2)  If  there  has  been  no  other  notification  of  the  blockade  to 
the  neutral  Power  to  which  the  vessel  belongs,  than  a  com- 
munication addressed  to  its  consular  representative  (Article 
II,  paragraph  2)  which  the  latter  has  not  yet  been  able  to  com- 
mimicate  to  his  Government. 

Moreover,  the  goods  are  not  liable  to  confiscation  if  the  owner 
proves  that  up  to  the  moment  when  the  vessel  put  to  sea  he  did  not 
know  and  could  not  be  expected  to  know  of  the  establishment  of 
the  blockade. 

United  States  of  America 
(Nothing) 

Austria-Hungary 
(Nothing) 

Spain 

(B)  6.  If  bad  weather  or  other  circumstances  oblige  the  blockad- 
ing vessels  to  withdraw  from  the  line  of  blockade,  neutral  vessels 
which  during  their  absence  shall  enter  or  leave  can  not  be  treated 
as  having  violated  the  blockade.  (Spanish  Regulations  on  Blockade, 
of  1864,  art.  2.) 

7.  The  circumstance  that  all  or  part  of  the  goods  on  board  the 
vessel  breaking  the  blockade  has  a  free  destination  beyond  the  block- 
aded port  does  not  exempt  them  from  confiscation  with  the  ordinary 
exception  of  ignorance  of  the  blockade,  which  the  owner  of  the 
cargo  might  be  able  to  invoke. 

France 
(Nothing) 

Great  Britain 

24.  The  penalty  for  the  violation  of  a  blockade  is  condemnation 
of  the  ship  and  cargo. 

When  the  blockade  is  or  might  have  been  known  by  the  owners 


72  NAVAL   CONFERENCE  AT  LONDON 

of  the  cargo  or  by  their  agents  at  the  moment  of  embarkation,  there 
is  an  absolute  legal  presumption  of  the  knowledge  of  the  intention 
to  violate  the  blockade.  When  the  blockade  could  not  have  been 
known  by  the  owners  of  the  cargo  or  by  their  agents  at  th'^  moment 
of  embarkation,  the  cargo  will  be  released.^ 

Italy 

(b)  IV.  "Vessels  under  neutral  flag,  surprised  at  the  moment  of 
forcing  an  effective  and  declared  blockade,  shall  be  captured  and 
confiscated  with  their  cargo."     (Cod.  M.  M.,  art.  217.) 

Japan  . 

IX.  Vessels  which  knowingly  violate,  or  try  to  violate,  a  block- 
ade are  liable  to  confiscation  with  their  cargo,  but  if  it  is  proven  that 
the  owners  of  the  cargo  had  no  knowledge  of  the  intention  of  the  ves- 
sels to  violate  the  blockade,  the  said  cargo  is  released. 

Netherlands 

II.  (8)  Vessels  violating  the  blockade  can  be  confiscated  with 
their  cargo. 

Russia 

II.  Art.  8.  The  vessel  seized  for  violation  of  the  blockade  is  liable 
to  confiscation. 

It  is  the  same  with  the  cargo  unless  it  is  proven  by  the  interested 
parties  that  it  belongs  to  pe;"sons  ignorant  of  the  violation  of  the 
blockade. 

Art.  9.  The  confiscation  of  the  vessels  and  of  the  cargoes,  men- 
tioned in  Article  8,  can  take  place  only  by  virtue  of  a  sentence  of 
a  prize  court. 

Observations 

A  first,  general,  certain  principle  is  that  of  the  confiscation  of 
the  neutral  vessel  which  is  recognized  as  guilty  of  violation  of 
blockade. 


1  Panagbia  Rhomba,  12  Moore  P.  C.  168,  2  E.  P.  C.  635,  and  the  cases  cited 
there. 


VIEWS   EXPRESSED  BY  THE  POWERS  73 

As  to  the  cargo,  the  confiscation  is  likewise  pronounced  except,  ac- 
cording to  several  memoranda,  in  the  case  where  the  charterer  proves 
his  complete  ignorance,  at  the  moment  of  departure,  of  the  intention 
to  touch  at  the  blockaded  port. 

Basis  for  discussion 

27.  The  vessel  recognised  as  guilty  of  violation  of  blockade  is 
confiscated.  The  cargo  is  also  confiscated  unless  the  shipper  proves 
that,  at  the  moment  when  the  goods  were  shipped,  he  neither  knew 
nor  could  have  knozvn  of  the  intention  to  touch  at  the  block- 
aded port. 

C 

CONTINUOUS  VOYAGE 

The  question  can  be  put  either  for  the  contraband  or  for  the  block- 
ade, and  for  the  goods  or  for  the  vessel. 

A — In  the  Matter  of  Contraband 

Views  expressed  by  the  memoranda 

Germany 

Art.  16.  It  is  forbidden  to  neutral  vessels  going  toward  the  territory 
of  a  belligerent,  or  towards  a  territory  occupied  by  him,  or  towards 
his  armed  force,  to  transport  articles  of  contraband  of  war  which 
are  not  destined  to  be  discharged  in  an  intermediate  neutral  port. 

The  ship's  papers  constitute  complete  proof  of  the  route  of  the 
vessel  as  well  as  of  the  place  of  discharge  of  the  cargo,  unless  the 
vessel  is  encountered  having  manifestly  deviated  from  the  itinerar}' 
indicated  by  the  ship's  papers  and  being  unable  to  justify  by  suffi- 
cient reason  such  deviation. 

United  States  of  America 

Art.  34.  Vessels,  whether  neutral  or  otherwise,  carrying  contra- 
band of  war  destined  for  the  enemy  are  liable  to  seizure  and  de- 
tention, unless  treaty  stipulations  provide  otherwise. 


74  naval  conference  at  london 

Austria-Hungary 

(C)  I.  The  so-called  "theory  of  continuous  voyage,"  applied  by  the 
prize  courts  of  some  Powers,  is  rejected  almost  unanimously  by  the 
continental  authors.  By  admitting  that  there  could  be  contraband 
between  neutral  ports,  every  neutral  vessel  would  be  susceptible  of 
being  captured  under  pretext  that  the  goods  it  was  carrying  could, 
by  detours,  reach  the  enemy.  Goods  which,  according  to  the  ship's 
papers,  are  destined  for  a  neutral  port  can  not,  in  all  justice,  be 
seized.  An  exception  could  be  made,  at  the  most,  for  the  case 
where  it  should  be  established  that  the  vessel  must,  with  the  said 
goods  on  board,  call  at  an  enemy  port.  Moreover,  even  in  this  case, 
the  interest  of  the  belligerents  demands  the  seizure  only  when  the 
vessel  is  going  directly  for  the  enemy  territory  or  with  destination 
for  the  enemy  forces. 

That  which  is  absolutely  contrary  to  the  practice  of  almost  all  the 
States  and  to  the  doctrine  is  the  pretention  of  the  belligerents  to 
capture  a  vessel  which  has  carried  contraband  of  v/ar,  after  it  has 
discharged  the  suspected  goods.  A  title  of  law  on  which  such  pre- 
tention could  be  founded  can  not  be  imagined;  the  history  of  contra- 
band of  war  shows  that  the  capture  of  the  vessel  and  the  seizure  of  the 
goods  can  not  in  any  manner  be  considered  as  a  punishment  but  only 
as  an  act  of  legitimate  defense,  and  that  the  neutral  who  traffics  in 
contraband  does  not  commit  an  illegal  action  but  that  he  embarks 
only  on  a  "commercial  adventure."  This  opinion  is  that  of  almost 
all  the  authors,  and  it  has  been  formally  authorized  by  the  Second 
Conference  of  The  Hague.  (Art.  7  of  the  "Convention  Concerning  the 
Rights  and  Duties  of  Neutral  Powers  in  Case  of  Maritime  War.") 

Spain 

(C)  Number  4  of  the  points  relative  to  contraband  of  war  .  .  . 
excludes  the  application  of  the  doctrine  of  continuous  voyage. 

(A)  4.  Notwithstanding  the  paragraph  preceding  (vide  supra,  p. 
32),  in  order  that  the  right  of  the  belligerent  to  repress  contraband 
can  begin  to  be  exercised,  the  vessel  on  which  the  goods  are  found 
must  be  going  directly  towards  the  enemy  fleet  or  point. 


views  expressed  by  the  powers  75 

France 

(C)    1.  In  the  matter  of  transportation  of  contraband: 

The  destination  of  the  goods  decides  its  character  of  contraband. 

The  destination  of  the  vessel  is  insufficient  to  establish  that  of  the 

goods. 

Great  Britain 

1.  When  an  adventure  includes  the  carriage  of  goods  to  a  neutral 
port,  and  thence  to  an  ulterior  destination,  the  doctrine  of  "contin- 
uous voyage"  consists  in  treating  for  certain  purposes  the  whole  journey 
as  one  transportation,  with  the  consequences  which  would  have  at- 
tached had  there  been  no  interposition  of  the  neutral  port. 

2.  The  doctrine  is  only  applicable  when  the  whole  transportation  is 
made  in  pursuance  of  a  single  mercantile  transaction  preconceived 
from  the  outset.  Thus  it  will  not  be  applied  where  the  evidence  goes 
no  further  than  to  show  that  the  goods  were  sent  to  the  neutral  port 
in  the  hopes  of  finding  a  market  there  for  delivery  elsewhere. 

5.  There  is  no  reported  case  in  the  British  Prize  Courts  in  which 
the  doctrine  of  continuous  voyage  has  in  specific  terms  been  applied  to 
the  carriage  of  contraband.  His  Majesty's  Government,  however, 
raised  no  objection  to  the  condemnation  as  contraband  of  goods  on 
board  a  British  ship  seized  while  making  a  voyage  to  a  neutral  port, 
where  it  was  proved  that  the  goods  had  been  shipped  for  transship- 
ment at  the  neutral  port  and  subsequent  conveyance  to  the  enemy 
territory.^  In  litigation  arising  out  of  the  insurances  on  cargoes  so 
seized  and  condemned,  the  British  Court  held  that  the  goods  were 
properly  described  as  contraband.^ 

6.  His  Majesty's  Government  have  also  enforced  the  right  to  de- 
tain vessels  carrying  goods  of  a  contraband  nature  to  a  neutral  port, 
where  the  territory  of  the  belligerent  to  whom  they  were  destined 
had  no  access  to  the  sea.^  No  contraband  was  found  on  board  such 
vessels,  and  no  case  was  brought  before  a  prize  court  for  decision. 


^  Peterhoff,  Wallace's  Reports   (United  States    Supreme  Court),  vol.  5,  p.  28. 

2  Seymour  v.  London  and  Provincial  Marine  Insurance  Company,  Law  Journal 
Reports,  Common  Pleas,  vol.  41,  p.  193,  and  vol.  42,  p.  Ill;  see  also  Hohbs  v. 
Henning,  same  series,  vol.  34,  p.  117. 

3  This  right  was  also  maintained  by  the  Italian  Prize  Court  in  the  case  of  the 
Doelwyck  (see  Journal  du  Droit  International  Prive,  vol.  24  (1897),  p.  268). 


76  naval  conference  at  london 

Italy 

(c)  The  reply  to  these  questions  is  contained  imphcitly  in  the 
provisions  cited  above  at  letter  (a),  II,  n.  1  and  2,  so  far  as  concerns 
contraband.     .     .     . 

(a),  II.  I.  "Neutral  vessels,  going  towards  an  enemy  country 
whose  cargo  is  formed  wholly  or  in  part  of  articles  of  contraband 
of  war  shall  be  captured  and  taken  into  one  of  the  ports  of  the  State, 
where  the  vessel  and  the  goods  shall  be  confiscated  and  the  other 
goods  shall  be  left  at  the  disposal  of  the  owners."  (Cod.  M.  M.,  art. 
215.) 

2.  The  provision  aforesaid  has  been  interpreted  and  applied  in  this 
sense,  that  the  character  of  contraband  of  war  depends  on  the  final  and 
intended  destination  of  the  cargo  and  not  on  the  immediate  and 
material  destination  of  the  vessel.  In  a  particular  case  it  has  been 
held  that  contraband  exists  when  the  vessel  is  going  towards  a  neutral 
port  with  intention  to  discharge  there  the  goods  destined  to  reach 
the  enemy  country  by  land  route,  particularly  if  the  country  in  ques- 
tion has  no  seaboard.  (Comni.  prises,  December  8,  1896,  capture  of  the 
Doehcijk.) 

Japan 

III.  The  destination  of  the  cargo  is  ordinarily  determined  by  the 
destination  of  the  vessel. 

Goods  found  on  board  a  vessel  are  presumed  to  have  a  hostile 
destination  if  the  destination  of  the  vessel  is  a  place  which  geograph- 
ically or  according  to  other  considerations  can  be  regarded  as  consti- 
tuting the  last  halting  place  in  the  transportation  of  the  goods,  whether 
by  transshipment  or  by  land  transport  to  a  hostile  destination. 

Netherlands 

III.  (1)  The  theory  of  the  "continuous  voyage"  is  appHed  solely 
to  the  transportation  of  contraband  towards  the  enemy  territory  with- 
out transshipment  in  a  neutral  port. 

Russia 
III.  See: 

Article  4  of  the  draft  on  contraband     .     .     . 
Art.  4.     Illegal  destination  in  the  sense  of  Articles  1,  2,  and  3^  is 

1  See  p.  35. 


VIEWS  EXPRESSED  BY  THE  POWERS  77 

considered  as  established  when  the  articles  of  contraband  are  found 
on  board  a  vessel : 

(a)  Which  is  going  directly  toward  an  enemy  territory  occupied 
by  the  enemy  or  towards  the  armed  forces  of  the  enemy ; 

(Z?)  Which,  while  falsely  declaring  a  neutral  destination,  is,  in 
reality,  going  towards  an  enemy  country,  a  territory  occupied 
by  the  enemy,  or  towards  his  armed  forces ; 

(c)  Whost  destination  is  in  fact  a  neutral  port,  if  the  articles  of 
contraband  which  are  on  board  are  destined  to  be  sent  finally 
by  sea  to  an  enemy  country,  a  territory  occupied  by  the 
enemy  or  to  his  armed  forces. 

Observations 

When  an  expedition  pei-mits  a  voyage  including  a  neutral  port 
and  from  there  an  enemy  destination  the  doctrine  of  continuous 
voyage  consists  in  treating  the  entire  voyage  as  a  single  voyage  without 
taking  account  of  the  interposition  of  the  neutral  port. 

It  is  believed  possible  to  deduce  from  the  practices  followed  up 
to  the  present  that  it  is  the  destination  of  the  goods  which  determines 
its  character  of  contraband.  Consequently,  if  this  destination  is  mani- 
festly established,  it  makes  little  difference  that  the  voyage  of  the  goods 
does  or  does  not  include  transshipments  and  stops  or  calls  of  the 
vessel  in  the  course  of  the  route. 

Bash  for  discussion 

28.  When  the  destination  of  contraband  merchandise  is  established 
it  makes  no  difference  that  the  voyage  of  the  goods  includes  or  does 
not  include  transshipments  and  stops  or  calls  of  the  vessel  in  course 
of  the  route. 

B — In  the  Matter  of  Blockade 

Views  expressed  by  the  memoranda 

Germany 

Art.  8.  A  blockade  can  be  established  by  a  belligerent  only  with 
regard  to  an  enemy  coast  or  coast  occupied  by  him. 

Art.   12.     .     .     .     The  capture  is  permitted  only   when  the  vessel 


78  NAVAL   CONFERENCE  AT  LONDON 

tries  to  cross  the  lines  of  the  blockade  or  is  pursued  in  flagranti  by  a 
vessel  of  the  blockading  force. 

United  States  of  America 

Art.  43.  The  liability  of  a  vessel  purposing  to  evade  a  blockade  to 
capture  and  condemnation  begins  with  her  departure  from  the  home 
port  and  lasts  until  her  return,  unless  in  the  meantime  the  blockade  of 
the  port  is  raised. 

Austria-Hungary 

II.  The  defenders  of  the  theory  of  continuous  voyage  avail  them- 
selves of  it  when  it  concerns  a  blockade  to  affirm  that  a  vessel  can  be 
captured : 

1.  Even  after  it  has  succeeded  in  forcing  the  blockade; 

2.  When  it  makes  sail  for  the  blockaded  port,  even  when,  before 

reaching  it,  it  must  call  at  ports  not  blockaded. 
The  two  aspirations  lack  a  judicial  basis.  When  the  vessel  has 
forced  the  line  of  defense  its  capture  would  constitute  an  act  of  chastise- 
ment and  not  of  defense.  And  so  long  as  the  vessel  has  not  yet  ap- 
proached the  blockading  squadron,  it  can  not  have  attempted  to  violate 
the  blockade.  Now  only  the  attempt  to  violate  the  blockade  justifies 
the  capture.  On  this  point  almost  all  the  authors  are  agreed.  (Cf. 
Revue  de  Droit  et  de  Legislation  Comparee,  1882,  pp.  176,  328,  et  seq., 
and  607.) 

Spain 

(C)  Number  4  of  the  points  relative  to  contraband  of  war,  as  also 
the  acceptance  of  the  Italian  project  in  regard  to  the  notion  of  the 
violation  of  the  blockade,  excludes  the  application  of  the  doctrine  of 
continuous  voyage. 

France 

(C)  2.  In  the  tnatter  of  blockade: 

Vessels  going  towards  a  blockaded  port  can  be  captured  only  at 
the  moment  when  they  attempt  to  force  the  lines  of  the  blockade. 
Up  to  that  time,  their  destination  towards  the  blockaded  port  or  their 


VIEWS  EXPRESSED  BY  THE  POWERS  79 

destination  to  a  neighboring  neutral  port,  with  goods  for  the  block- 
aded port,  does  not  constitute  an  offense  against  neutrality. 

Great   Britain 

7.  There  are  passages  in  the  judgments  of  cases  decided  in  the 
British  Prize  Courts  which  indicate  that,  where  an  ulterior  port  is 
blockaded,  a  vessel  intending  to  attempt  to  enter  such  blockaded  port 
at  a  later  stage  of  her  voyage  would  not  be  exempt  from  condemna- 
tion if  seized  while  making  for  a  neutral  port,  provided  that  such 
seizure  and  condemnation  were  consistent  with  the  principles  set  out 
in  section  21  of  the  memorandum  of  blockade.  But  the  fact  that 
there  is  no  reported  case  where  condemnation  under  such  circum- 
stances has  been  decreed,  suggests  that  in  practice  this  doctrine  can 
hardly  ever  be  applied.^ 

Where  the  ship  does  not  intend  to  proceed  to  the  blockaded  port 
the  fact  that  goods  on  board  are  to  be  sent  on  by  sea  or  by  inland 
transport  is  no  ground  for  condemnation.- 

A  ship  which  has  succeeded  in  coming  out  of  a  blockaded  port  is 
liable  to  capture  until  the  conclusion  of  the  voyage,  as  indicated  by 
her  papers,  and  such  voyage  is  not  terminated  by  the  mere  touching  at 
an  intermediate  port.'' 

Italy 

(c)  The  answer  to  these  questions  is  contained  implicitly  in  the 
provisions  cited  above  ...  at  the  letter  (b),  III,  n.  1,  so  far  as 
concerns  the  blockade. 

(b)  III.  1.  The  destination  of  the  vessel  to  the  blockaded  port  is 
not  sufficient  to  consider  it  as  guilty  of  violation  of  the  blockade. 

The  vessel  seized  at  the  moment  of  crossing  the  line  of  an  effective 
and  declared  blockade,  whether  it  is  trying  to  enter  the  blockaded  place 
or  to  leave  it.  is  guilty  of  violation  of  blockade.  (Cod.  M.  M.,  art. 
217;   Instructions,  art.  VII.) 


'^Little  William,  1  Acton  141;  Imina.  3  C.  Rob.  167,  1  E.  P.  C.  289. 

2  Jonge  Pieter,  4  C.  Rob.  79,  1  E.  P.  C.  353 ;  Ocean,  3  C.  Rob.  297,  1  E.  P.  C 
310;  Stcrt,  4  C.  Rob.  65,  1  E.  P.  C.  348. 

3  General  Hamilton,  6  C.  Rob.  61,  1  E.  P.  C.  528. 


80  naval  conference  at  london 

Japan 

VIII.  If  a  vessel,  having  as  ostensible  destination  a  place  other  than 
a  blockaded  zone,  is  recognized  as  having  the  intention  of  going  into 
the  blockaded  zone  after  having  touched  at  the  said  place  not  blockaded, 
the  voyage  is  considered  to  be  continuous  and  the  entire  destination 
to  be  that  of  the  blockaded  zone. 

Netherlands 

III.  (1)  The  theory  of  the  "continuous  voyage"  is  applied  solely  to 
the  transport  of  contraband  towards  the  enemy  territory  without 
transshipment  in  a  neutral  port. 

Russia 
See: 

.     .     .     article  6  of  the  Draft  regarding  the  blockade. 
Art.  6.  The  destination  in  a  blockaded  locality  is  considered  as  es- 
tablished when  the  vessel : 

(a)  is  going  directly  towards  a  blockaded  locality,  or 

(b)  in  spite  of  its  apparently  lawful  destination,  is,  in  fact,  going 

towards  a  blockaded  locality. 

Observations 

In  the  matter  of  blockade  it  does  not  appear  that  the  memoranda 
consider  the  violation  of  the  blockade  by  the  goods  themselves ;  what 
they  consider  is  the  violation  of  the  blockade  by  the  vessel.  If  the 
violation  of  the  blockade  must  be  manifestly  characterized  to  authorize 
the  capture  {vide  supra,  p.  70)  it  can  not  be  said  that  this  condition  is 
fulfilled  when  the  vessel  is  at  the  time  going  towards  a  neutral  port. 

Basis  for  discussion 

29.  The  violation  of  the  blockade  is  insufficiently  characterised  to 
authorise  the  capture  of  the  vessel  when  the  latter  is  at  the  time  going 
towards  a  neutral  port. 


VIEWS  EXPRESSED  BY  THE  POWERS  81 

D 

DESTRUCTION  OF  PRIZES 

Viezi's  expressed  by  the  memoranda 

Germany 

24.  The  captured  vessels  and  goods  must  be  conducted  to  the  seat 
of  a  prize  court  of  the  captor  belHgerent  to  be  tried. 

25.  As  an  exception,  the  captured  vessels  and  goods  may  be  sunk, 
scuttled,  or  otherwise  destroyed  if  their  preservation  could  compromise 
the  security  of  the  war  vessel  or  the  success  of  its  operations. 

Before  the  destruction  of  the  vessel  its  crew  must  be  placed  in 
security  and  all  the  ship's  papers  and  such  other  articles  as  the  in- 
terested parties  consider  important  for  the  estabHshment  of  the 
validity  of  the  capture  must  be  transferred  to  the  war  vessel. 

26.  In  the  case  contemplated  in  paragraph  1  of  Article  25,  goods 
which  cannot  be  confiscated  and  which,  by  reason  of  circumstances, 
can  not  be  transferred  to  the  war  vessel,  may  also  be  sunk  or  de- 
stroyed with  the  vessel.  In  this  case  the  owner  of  the  goods  shall  have 
the  right  to  an  indemnity. 

United  States  of  America 

Art.  45.  Prizes  should  be  sent  in  for  adjudication,  unless  otherwise 
directed,  to  the  nearest  suitable  port  within  the  territorial  jurisdiction 
of  the  United  States  in  which  a  prize  court  may  take  action. 

Art.  48.  The  title  to  property  seized  as  prize  changes  only  by  the 
decision  rendered  by  the  prize  court.  But  if  the  vessel  or  its  cargo 
is  needed  for  immediate  public  use  it  may  be  converted  to  such  use, 
a  careful  inventory  and  appraisal  being  made  by  impartial  persons 
and  certified  to  the  prize  court. 

Art.  49.  If  there  are  controlling  reasons  why  vessels  that  are 
properly  captured  may  not  be  sent  in  for  adjudication — such  as  un- 
seaworthiness, the  existence  of  infectious  disease,  or  the  lack  of  a 
prize  crew — they  may  be  appraised  and  sold,  and  if  this  can  not  be 
done,  they  may  be  destroyed.  The  imminent  danger  of  recapture 
would  justify  destruction,  if  there  should  be  no  doubt  that  the  vessel 
was  a  proper  prize.  But  in  all  such  cases  all  of  the  papers  and  other 
testimony  should  be  sent  to  the  prize  court  in  order  that  a  decree  may 
be  duly  entered. 


82  naval  conference  at  london 

Austria-Hungary 

(D)  The  regulations  of  several  States,  as  also  a  great  number  of 
authors  (cf.  Bonfils-Grah,  Handbuch  des  Volkerrechts,  p.  724), 
authorize,  by  right  of  exception,  the  destruction  of  neutral  prizes. 
It  is  clear,  however,  that  this  authorization,  even  having  in  view  only 
the  rarest  cases,  is  very  dangerous  for  the  commerce  of  neutrals. 
This  is  why  it  would  be  desirable  that  the  exceptions  be  at  least 
specified  and  limited.     But  that  seems  hardly  possible. 

It  may  be  asked  whether  the  right  to  destroy  the  prizes  presents 
advantages  for  belligerents.  This  right  would  indeed  involve  the 
obligation  for  the  captor  to  take  on  board  before  destruction  of  the 
prize  all  the  crew,  the  passengers,  and,  as  far  as  possible,  the  cargo  of 
the  captured  vessel,  to  disembark  the  above-mentioned  persons  in  the 
nearest  neutral  port,  at  least  in  the  case  where  the  destruction  would 
be  recognized  as  unlawful,  to  be  responsible  for  all  damages  they 
would  suffer  by  transportation  on  a  vessel  exposed  to  enemy  pro- 
jectiles, by  the  loss  in  whole  or  in  part  of  their  baggage,  and  by  the 
forced  interruption  of  their  voyage.  It  might  happen  that  the  belliger- 
ent would  risk  having  to  pay  such  sums  that  it  would  seem  preferable 
to  him,  for  example,  to  let  some  arms  fall  into  the  hands  of  the  enemy. 
It  must  not  be  forgotten  either  that  it  is  a  grave  attack  on  the  in- 
terests of  neutrals  if  the  belligerent  takes  on  board  its  war  vessels,  to 
expose  them  there  to  all  kinds  of  dangers  and  even  to  death,  subjects 
of  States  with  which  he  is  at  peace. 

It  would  then  be  desirable  to  reach  a  solution  forbidding,  in  an 
absolute  manner,  the  destruction  of  neutral  prizes.  If  this  object  can 
not  at  once  be  attained,  it  would,  nevertheless,  be  possible  to  come  to 
an  agreement  on.  a  regulation  tending  to  render  the  destruction  super- 
fluous in  almost  all  cases.    For  this  it  would  be  necessary : 

1.  To  establish  rules  according  to  which  the  destruction  would,  in 

practice,  become  very  rare,  and 

2.  To  introduce,  in  the  different  matters  of  the  law  of  maritime  war, 

prescriptions,  offering  all  the  guarantees  possible  so  that  the 
destruction  of  neutral  prizes  may  become  useless. 
Ad  1.  The  number  of  the  cases  where  destruction  can  occur  might 
be  restricted  in  a  very  perceptible  manner  if  the  belligerents  were  per- 
mitted, or,  better,  if  they  were  enjoined — as  the  Italian  delegation 
to  The  Hague  has  proposed — to  conduct  the  neutral  prizes  into 
neutral  ports,  at  least  in  the  cases  where,  in  virtue  of  art.  21  of  the 


VIEWS  EXPRESSED  BY  THE  POWERS  83 

"Convention  Concerning  the  Rights  and  Duties  of  Neutral  Powers 
in  Case  of  Maritime  War,"  the  neutral  States  are,  from  this  moment, 
obliged  to  receive  the  neutral  prizes.  The  cases  in  question  are  pre- 
cisely those  which  oftenest  render  impossible  the  sending  of  the 
capture  into  national  ports  too  far  distant  and  which,  for  that  reason, 
lead  necessarily  to  destruction. 

The  belligerent  captor  could  then  be  obliged,  when  he  could  not 
take  the  neutral  prize  to  a  port  of  his  own  country  because  of  in- 
navigability,  the  bad  state  of  the  sea,  the  lack  of  fuel  or  provisions,  to 
conduct  it  or  send  it  to  the  nearest  neutral  port,  except  in  the  case 
where  by  so  doing  he  would  compromise  the  safety  of  his  vessel  or 
the  success  of  his  operations. 

It  is  true  that  the  neutral  State  ought  then  to  hold  sequestered  such 
a  prize  until  the  end  of  the  hostilities. 

Ad  2.  In  this  case  questions  of  contraband,  blockade,  and  hostile 
assistance  are  especially  concerned. 

It  might  be  declared,  for  example,  on  the  one  hand,  that  it  would 
be  lawful  for  the  captain  of  the  neutral  vessel  to  deliver  immediately 
the  contraband  or  to  destroy  it,  if  by  doing  so  he  could  escape  capture 
and  consequent  destruction  of  his  vessel,  and,  on  the  other  hand, 
that  the  captor  would  be  obliged  to  take  possession  of  the  goods  or 
permit  their  destruction  if,  in  letting  the  neutral  vessel  continue  on  the 
route  with  the  contraband  on  board,  he  would  compromise  his  own 
security  or  the  success  of  his  operation. 

Similar  rules  could  be  likewise  established  as  to  other  subjects  of 
prize  law. 

It  is  clear  that  the  formula  therefor  could  only  be  found  where 
an  agreement  had  been  reached  on  the  principles  of  the  regime  to 
which  neutral  prizes  would  have  to  be  submitted. 

Spain 
(D)  Neutral  prizes  can  not  be  destroyed  by  the  captor  so  long  as 
the  competent  tribunal  has  not  declared  them  legal.  The  application  of 
this  principle  can,  however,  be  subordinated  by  the  Powers  signatory 
to  the  future  Convention  for  the  acceptance  of  the  prescriptions 
contained  in  the  "Convention  Concerning  the  Rights  and  Duties  of 
Neutral  Powers  in  Case  of  Maritime  War,"  to  the  subject  of  the 
access  of  neutral  prizes  to  neutral  ports.     But  even  in  this  case,  the 


84  NAVAL  CONFERENCE  AT  LONDON 

destruction  would  not  be  justified  except  by  reason  of  the  state  of  the 
sea,  the  condition  of  the  capturing  and  captured  vessels  for  navigating, 
or  of  the  lack  of  fuel  or  provision,  and  not  from  the  proximity  of 
the  enemy  or  from  lack  of  military  elements  sufficient  to  insure  the 
conduction  to  the  corresponding  port.  These  last  reasons  and  others 
analogous  to  them  imply  that  the  captor  does  not  possess  sufficient 
means  to  complete  the  capture. 

France 

(D)  In  principle,  prizes  must  be  put  in  charge  of  a  prize  crew, 
conducted  into  a  national  or  allied  port,  and  not  destroyed.  The 
captor,  however,  is  authorized  to  destroy  every  prize  whose  preser- 
vation would  compromise  his  own  safety  or  the  success  of  his  oper- 
ations, particularly  if  he  can  not  preserve  the  prize  without  weakening 
his  crew. 

Use  of  this  right  of  destruction  should  be  made  only  with  the 
greatest  reserve  towards  enemy  vessels,  and  a  fortiori  towards  neutral 
vessels.  The  destruction  of  a  neutral  vessel  should  be  quite  excep- 
tional. 

In  case  of  destruction  the  captor  must  take  care  to  preserve  all  the 
ship's  papers  and  other  elements  necessary  to  permit  the  judgment  of 
the  prize. 

Great  Britain 

1.  The  duty  of  a  belligerent  captor  is  to  bring  in,  for  adjudication 
by  a  prize  court,  any  merchant  ship  which  he  has  seized.  Where  this 
is  impossible  she  may,  if  she  is  an  enemy  ship,  be  destroyed  after  re- 
moval of  the  crew  and  papers ;  if  the  nationality  of  the  ship  is  neutral, 
or  if  there  is  any  doubt  as  to  the  nationality,  she  should  be  dismissed, 
for  her  destruction  can  not  be  justified  as  between  the  neutral  owner 
and  the  captor  by  any  necessity  on  the  part  of  a  belligerent.^ 

2.  Innocent  neutral  cargo  on  board  an  enemy  ship  not  being  liable 
to  seizure,"  the  owner  of  such  cargo  is  entitled  to  compensation  where 
the  enemy  ship  is  destroyed. 


1  Actaeon,  2  Dodson  48,  2  E.  P.  C.  209;  Felicity,  2  Dodson  381.  2  E.  P.  C.  22Z; 
see  also  the  dictum  of  Dr.  Lushington  in  the  Leucade,  Spinks,  231,  2  E.  P.  C.  488. 

2  Declaration  of  Paris,  article  3. 


views  expressed  by  the  powers  85 

Italy 

(d)  The  questions  concerning  the  right  to  proceed  to  the  destruc- 
tion of  merchant  vessels,  either  enemy  or  neutral,  before  the  prize  court 
has  rendered  a  decision  are  not  regulated  expressly  by  Italian  posi- 
tive law. 

In  a  special  case,  it  has  been  held  that  the  owner  of  a  neutral 
merchant  vessel  destroyed  before  its  capture  had  been  submitted  to 
the  regular  judgment  of  the  prize  court,  would  have  no  reason  or 
interest  to  complain  when  the  vessel  was  found  in  conditions  which 
legally  justified  its  capture  and  confiscation.  (Cont.  dipt.,  December 
16,  1859,  capture  of  the  vessel  Fama  Argentina.) 

Japan 

The  commanders  of  belligerent  war  vessels  are  held  to  send  neutral 
vessels  after  seizure  to  be  put  on  trial.  If  for  any  reason  they  can 
not  do  so,  said  vessels  ought  not  to  be  destroyed  before  condemnation. 

Netherlands 

IV.  (1)  A  neutral  vessel  captured  ought  to  be  released  by  the  cap- 
tor if  it  can  not  be  taken  into  a  port  of  the  captor  or  into  a  neutral 
port  pending  the  decision  of  the  prize  court  (conformably  to  article 
23  of  the  Convention  Concerning  the  Rights  and  Duties  of  Neutral 
Powers  in  Case  of  Maritime  War.) 

(2)  In  the  case  specified  in  the  preceding  paragraph  the  belligerent 
can,  without  destroying  the  vessel,  take  all  measures  to  prevent  the 
contraband  from  reaching  the  enemy  destination.  The  prize  court 
will  decide  on  the  correctness  of  the  measures  taken. 

(3)  In  the  circumstances  mentioned  under  (1)  an  enemy  vessel 
can  be  destroyed  after  the  crew  and  the  ship's  papers  shall  have 
been  put  in  safety. 

(4)  The  owner  shall  be  indemnified  for  the  destruction  of  his 
cargo  if  the  latter  was  not  liable  to  confiscation. 

Russia 

IV.  Art.  1.  The  destruction  of  a  vessel  of  neutral  nationality,  cap- 
tured and  liable  to  confiscation,  is  forbidden  except  in  cases  where 


86  NAVAL  CONFERENCE  AT  LONDON 

its  preservation  could  compromise  the  safety  of  the  captor  vessel  or 
the  success  of  its  operations. 

Art.  2.  In  the  cases  specified  in  Article  1,  the  commander  of  the 
captor  vessel  is  required  to  transship  the  men,  and  as  far  as  possible  the 
cargo,  before  destroying  the  vessel,  as  well  as  to  take  the  necessary 
measures  to  preserve  all  the  ship's  papers  and,  if  there  is  occasion, 
other  articles  which  might  be  necessary  for  the  trial  before  the  prize 
court. 

Observations 

1.  Destruction  of  neutral  prises: 

Everybody  agrees  to  recognize  that  in  principle  a  neutral  prize 
must  be  taken  into  a  port  of  prize  and  made  the  object  of  a  decision 
of  a  prize  court. 

Certain  Governments  consider  that  the  general  principle  is  absolute 
and  admits  no  exceptions.  Other  Governments  have  admitted  in 
their  practice,  the  exceptional  power  of  the  captor  to  destroy  the  prize 
in  certain  determined  cases.  Ought  this  exceptional  power  to  be  recog- 
nized as  constituting  a  generally  accepted  interpretation  of  the  com- 
mon principle? 

Basis  for  discussion 

30.  In  principle  a  neutral  prize  must  he  taken  into  a  prize  port. 

31.  Should  the  obligation  to  take  the  captured  neutral  vessel  into 
a  prize  port  he  interpreted  as  absolute  or  as  admitting  exceptions? 

Observations 

2.  Destruction  of  neutral  goods  on  hoard  an  enemy  prize: 

A  question  connected  with  the  preceding  has  been  considered  by 
a  certain  number  of  memoranda;  it  concerns  the  case  where  a  neutral 
property  on  board  an  enemy  vessel  is  found  included  in  the  destruc- 
tion of  the  latter.  Propositions  of  conventional  stipulation  may  be 
or  will  be  able  to  be  made  in  this  regard,  but,  in  actual  practice,  should 
the  recognized  general  principle,  according  to  which  neutral  goods 
under  enemy  flag  is  not  liable  to  seizure,  be  interpreted  in  the  sense 
that  in  case  of  destruction  the  owner  of  this  merchandise  should  be 
indemnified  for  its  value?  Or,  in  such  a  case,  is  there  an  act  of  war 
giving  no  occasion  legally  even  to  a  pecuniary  obligation  against  the 
belligerent  ? 


VIEWS  EXPRESSED  BY  THE  POWERS  .87 

Basis  for  discussion 

32.  Should  the  principle  according  to  zuhich  neutral  goods  found  on 
board  an  enemy  vessel  are  not  liable  to  seizure  be  interpreted  in  the 
sense  that,  in  case  of  destruction  of  the  vessel,  the  ozuner  of  the  goods 
must  be  indemnified,  or  that  in  such  a  case  the  destruction  of  the 
vessel  constitutes  an  act  of  war  not  legally  causing  a  pecuniary  re- 
sponsibility against  the  belligerent? 


HOSTILE  ASSISTANCE 

Views  expressed  by  the  memoranda 
Germany 

2.  Vessels  placed  under  the  orders  of  a  military  chief,  who  is  on 
board,  can  not  avail  themselves  of  the  character  of  merchant  vessels 
in  the  sense  of  article  1  of  the  Convention  Relative  to  the  Establish- 
ment of  an  International  Prize  Court,  concluded  at  The  Hague,  Octo- 
ber 18,  1907. 

3.  The  neutral  or  enemy  character  of  a  merchant  vessel  is  deter- 
mined by  the  flag  it  carries. 

A  vessel  carrying  a  neutral  flag  can,  nevertheless,  be  treated  as  an 
enemy  vessel : 

(3)   If  it  is  chartered  wholly  by  the  enemy  Government. 

23.    A  neutral  merchant  vessel  is,  moreover,  liable  to  confiscation : 

(1)  If  it  is  at  the  time  and  exclusively  engaged  either  in  the  trans- 
portation of  enemy  troops  or  in  the  transmission  of  informa- 
tion in  the  interest  of  the  enemy; 

(2)  If  it  is  making  the  voyage  especially  in  view  of  the  trans- 
portation of  individual  passengers  embodied  in  the  armed  forces 
of  the  enemy  or  in  view  of  the  transmission  of  information  in 
the  interest  of  the  enemy; 

(3)  If,  with  the  knowledge  of  the  owner  or  of  the  charterer  or, 
finally,  of  the  captain,  it  is  carrying  a  military  detachment  of 
the  enemy  or  one  or  more  persons  who  are  directly  assisting  the 
operations  of  the  enemy. 

Confiscation  of  the  vessel  is  not  permitted  if,  at  the  moment  when 


88  NAVAL  CONFERENCE  AT  LONDON 

the  vessel  was  encountered  on  the  sea,  the  captain  did  not  know  and 
should  not  have  known  of  the  opening  of  hostiHties  or  if,  after  having 
had  knowledge  thereof,  had  not  yet  been  able  to  disembark  the  trans- 
ported persons.  Ignorance  is  presumed  if  the  vessel  is  met  in  open 
sea  in  the  course  of  the  week  which  follows  the  opening  of  hostil- 
ities and  without  in  this  interval  having  called  at  a  port.  This  may 
be  rebutted. 

In  every  case,  the  persons  belonging  to  the  armed  forces  of  the 
enemy  can  be  made  prisoners  of  war. 

United  States  of  America 

Art.  14.  Neutral  vessels  in  the  military  or  naval  service  of  the 
enemy,  or  under  the  control  of  the  enemy  for  military  or  naval  pur- 
poses, are  subject  to  capture  or  destruction. 

Art.  17.  A  neutral  vessel  carrying  the  goods  of  the  enemy  is,  with 
her  cargo,  exempt  from  capture  except  when  carrying  contraband  of 
war,  endeavouring  to  evade  a  blockade,  or  guilty  of  unneutral  service. 

Art.  18.  A  neutral  vessel  carrying  hostile  dispatches,  when  saihng 
as  a  dispatch  vessel  practically  in  the  service  of  the  enemy,  is  liable 
to  seizure.  Mail  steamers  under  neutral  flags  carrying  such  dispatches 
in  the  regular  and  customary  manner,  either  as  a  part  of  their  mail 
in  their  mail  bags,  or  separately  as  a  matter  of  accommodation  and 
without  special  arrangement  or  remuneration,  are  not  liable  to  seizure 
and  should  not  be  detained,  except  upon  clear  grounds  of  suspicion 
of  a  violation  of  the  laws  of  war  with  respect  to  contraband,  block- 
ade or  unneutral  service,  in  which  case  the  mail  bags  must  be  forwarded 
with  seals  unbroken. 

Austria-Hungary 

I.    The  so-called  contraband  by  analogy 

Almost  all  the  authors  assimilate  to  contraband  of  war,  the  trans- 
portation of  troops,  of  agents  of  the  belligerents,  and  of  despatches. 
It  is  true  that  in  this  case  the  application  by  analogy  of  the  principles 
relative  to  the  repression  of  contraband  is  not  concerned  since  the 
confiscation  could  only  take  place  in  the  case  of  the  despatches,  while 
the  persons  transported  can  be  made  prisoners  by  the  enemies  of 
the  person  to  whom  they  are  addressed. 


VIEWS  EXPRESSED  BY  THE  POWERS  89 

As  to  matters  of  detail,  nearly  every  author  treats  them  differently. 
Likewise  in  practice,  these  questions  are  not  always  decided  in  the 
same  way.  In  general,  the  rules  accepted  in  1896  at  Venice  by  the 
Institut  de  Droit  International  (''Service  de  transports,"  par.  6  to  8) 
might  be  sufficient  to  decide  all  litigations  which  can  normally  be  pre- 
sented. This  is  why  these  rules  could  serve  as  a  basis  for  a  discus- 
sion of  the  subject.  It  is  true  that  to  these  rules  others  bearing  on 
the  repression  of  the  contraventions  should  be  added. 

//.   Hostile  assistance  in  a  larger  sense 

Vessels  under  neutral  flag  can  not  avail  themselves  of  their  neu- 
trality if  they  commit  hostile  acts  against  a  belligerent  or  if  they 
render  services  to  his  adversary.  Such  a  vessel  should  be  liable  to 
confiscation ;  guilty  individuals  should  be  treated  as  enemies.  The 
transportation  of  contraband  properly  called  or  by  analogy  does  not 
constitute,  of  course,  a  service  involving  the  above-named  conse- 
quences. 

Spain 

(E)  1.  The  Spanish  Instructions  for  the  Exercise  of  the  Right  of 
Visit,  of  1898,  authorize  the  seizure  of  a  neutral  vessel : 

If  it  is  transporting,  for  the  enemy,  officers  of  war,  troops,  or 
sailors ; 

If  it  is  carrying  dispatches  or  communications  of  the  enemy,  except 
in  the  case  where  the  vessel  belongs  to  a  maritime  postal  line  and 
said  dispatches  or  communications  are  in  valises,  boxes,  or 
packages  of  public  correspondence,  the  captain  being  there- 
fore unaware  of  their  contents ; 

If  it  is  employed  in  spying  on  the  operations  of  the  war,  chartered 
or  rewarded  by  the  other  belligerent  for  this  service ; 

If  it  participates  in  the  war,  contributing  in  any  manner  to  the 
operations. 

2.  The  vessel  carrying  persons  whose  conduction  is  prohibited  to 
neutrals,  conformably  to  prior  prescriptions,  can  not  be  arrested  if 
they  are  travelling  as  ordinary  travellers  at  their  own  expense;  but 
the  belligerent  can  oblige  these  individuals  to  disembark. 

3.  Confiscation  is  the  sanction  corresponding  to  hostile  assistance, 
and  it  may  be  applied  even  after  the  act   or  transportation  if  the 


90  NAVAL  CONFERENCE  AT  LONDON 

vessel  continues  under  the  orders  of  the  adversary  or  remains  bound 
by  engagements  with  him. 

France 

(E)  The  French  regulations  do  not  provide  such  a  category  of 
vessels  and,  consequently,  any  special  treatment  to  impose  upon  them. 

These  vessels  would  be  considered  according  to  their  cargo,  as 
effecting  a  legal  or  prohibited  transportation,  and  would  have  ap- 
plied, if  there  were  occasion,  the  rules  relative  to  contraband. 

Great   Britain 

1.  A  neutral  vessel  employed  by,  or  on  behalf  of,  a  belligerent  to 
carry  combatants  or  intending  combatants  for  purposes  connected 
with  the  war  is  liable  to  condemnation  together  with  the  cargo  on 
board. ^  The  fact  that  the  master  is  ignorant  that  the  vessel  is  being 
so  employed  is  no  ground  for  exemption,^  nor  will  it  make  any  differ- 
ence that  the  employment  of  the  ship  originated  in  acts  of  violence 
or  duress  on  the  part  of  the  belligerent.^  The  vessel  is  liable  to  con- 
demnation although  at  the  time  of  seizure  the  service  on  which  she 
had  been  employed  had  come  to  an  end,  provided  that  she  was  still 
subservient  to  the  purposes  of  the  belligerent.* 

2.  The  same  rule  applies  where  the  vessel  is  employed  to  carry 
officers  in  the  civil  service  of  the  Government  on  the  public  service 
and  at  the  public  expense.^ 

3.  A  neutral  vessel  chartered  or  employed  by  a  belligerent  Govern- 
ment to  carry  a  cargo  on  its  behalf  and  acting  under  the  orders  or 
direction  of  that  Government,  or  of  its  officers,  is  liable  to  con- 
demnation as  an  enemy  ship,  together  with  the  cargo  so  carried.^ 

4.  Neutral  vessels  in  the  service  of  the  belligerent,  within  the  mean- 
ing of  the  above  sections,  and  under  the  orders  and  control  of  the 
belligerent,  may,  if  found  taking  part  in  military  operations  or  in 
the  immediate  vicinity  of  an  enemy  fleet,  be  sunk.' 


1  Friendship,  6  C.  Rob.  420,  1  E.  P.  C.  599;  Orosembo,  6  C.  Rob.  430;  1  E.  P.  C. 
605. 

2  Orozembo,  ibid. 

3  Carolina,  4  C.  Rob.  256,  1  E.  P.  C.  385. 
*  Carolina,  ibid. 

5  Dictum  of  Lord  Stowell  in  the  Orosembo,  6  C.  Rob.  434. 

6  Rebecca,  2  Acton,  119. 

^  No  such  case  has  actually  been  decided  in  the  British  Prize  Courts,  but  in 
1894  a  British  ship,  the  Kowshing,  was  sunk  by  the  Japanese  when  so  employed. 


VIEWS  EXPRESSED  BY  THE  POWERS  91 

5.  A  vessel  knowingly  carrying  persons  in  the  naval  or  military 
service  of  the  belligerent  is  liable  to  capture  and  condemnation/  but 
this  penalty  would  not  necesarily  be  enforced  where  such  persons  were 
merely  travelling  in  the  ordinary  way  as  private  passengers  at  their 
own  expense.^ 

6.  A  neutral  vessel  carrying  the  public  despatches  of  the  enemy  is 
liable  to  condemnation,  at  any  rate  if  there  has  been  concealment  of 
the  dispatches  or  other  circumstances  of  fraud,  or  if  their  presence 
was  known  to  the  master.  If  the  master  or  other  agent  of  the  cargo 
was  privy  to  their  carriage,  the  cargo  will  also  be  liable  to  condemna- 
tion.^ 

The  above  rule  will,  however,  not  be  applied  in  the  case  of  dis- 
patches between  a  diplomatic  representative  of  the  belligerent  State  in 
a  neutral  country  and  his  own  Government,*  or  in  the  case  of  postal 
correspondence  within  the  scope  of  articles  1  and  2  of  the  Convention 
relating  thereto  signed  at  The  Hague  in  1907.^ 

Italy 

(e)  Nor  is  this  matter  regulated  by  particular  provisions  of  positive 
Italian  law.  There  is  occasion,  however,  to  consider  how  perfectly 
the  principle  conforms  to  the  spirit  of  this  law,  as  well  as  to  the 
rules  of  international  law,  that  neutral  vessels  lose  the  privileges  which 
they  derive  from  this  quality  when  they  render  themselves  guilty 
of  hostile  acts  towards  one  of  the  belligerent  parties,  or  when  they 
perform  acts  intended  to  lend  assistance  to  the  adversary  in  the 
operations  of  war,  especially  the  transportation  of  troops  or  the  trans- 
mission of  information  in  the  interest  of  the  enemy. 

The  Prize  Commissions  and  the  Italian  Consultative  Administrative 
Corps  have  not  had  occasion  to  examine  and  resolve  the  numerous 
questions  which  are  connected  with  the  application  of  this  principle. 

It  has,  however,  been  decided,  in  circumstances  quite  special,  that 
a  foreign  merchant  vessel  which  renders  itself  guilty  of  hostile  acts 
towards  the   State  must  be  considered  as  enemy   and   as   such   can 


1  Hope,  6  C.  Rob.  462  n. 

2  Dictum  of  Lord  Stowell  in  the  Friendship,  6  C.  Rob.  429,  1  E.  P.  C.  604. 
^Atalanta,  6  C.  Rob.  441,  1  E.  P.  C.  607;  Susan.  6  C.  Rob.  461  n.,  1  E.  P.  C. 

614  n. 

4  Caroline,  6  C.  Rob.  461,  1  E.  P.  C.  615. 

s  "Convention  Relative  to  Certain  Restrictions  on  the  Exercise  of  the  Right 
of  Capture  in  Maritime  War." 


92  NAVAL   CONFERENCE  AT  LONDON 

be  legally  captured  and  confiscated.  {Comm.  Prises,  capture  of  the 
Vesuvio,  sanctioned  by  Royal  Rescript,  January  10,  1850;  Comm. 
Prises,  November  28,  185/,  cited  above.) 

Japan 

I.  Neutral  vessels  as  well  as  the  cargo  found  on  board  and  be- 
longing to  the  owners  of  the  vessels  are  liable  to  capture  in  the  fol- 
lowing cases : 

(a)  When  they  are  carrying  officers,  men,  or  other  persons  in  the 
military  or  naval  service  of  the  enemy  State ; 

{h)  When  they  are  carrying  an  official  correspondence  between 
the  functionaries  of  the  enemy  State,  except  the  corres- 
pondence between  the  diplomatic  or  consular  representatives 
and  their  Government. 

II.  In  the  cases  above  neither  the  vessel  nor  the  cargo  is  subject 
to  confiscation  if  it  is  proven. 

(a)  When  the  captains  of  the  vessels  have  no  knowledge,  real  or 
presumed,  of  the  existence  of  a  state  of  war; 

(&)  Or  that  reasonable  precautions  have  been  taken  by  the  owners 
or  the  captains  of  the  vessels  to  assure  themselves  of  the 
inoffensive  character  and  nature  of  the  persons  and  corres- 
pondence carried  by  the  vessels. 

III.  A  neutral  vessel  making  a  reconnaissance  or  carrying  informa- 
tion, or  voluntarily  rendering  in  some  other  fashion  services  to  the 
profit  of  one  belligerent  or  the  injury  or  detriment  of  the  other,  is 
liable  to  confiscation  as  well  as  the  goods  found  on  board  and  belong- 
ing to  the  owner  of  the  vessel. 

Netherlands 

V.  (1)  A  neutral  vessel  can  not  avail  itself  of  its  quality  of 
neutral,  so  long  as  it  is  employed : 

1.  For  the  transportation  of  troops  for  the  use  of  the  belligerents; 

2.  For  rendering  services  under  the  orders  or  surveillance  of  the 

belligerents ; 

3.  For  taking  part  in  the  military  operations  or  lending  assistance 

contrary  to  neutrality  in  the  immediate  vicinity  of  a  hostile  fleet. 

(2)   Neutral  vessels  on  board  which  are  persons  belonging  to  the 

military  forces  of  the  belligerents  are  not  contemplated  in  the  preced- 


VIEWS  EXPRESSED  BY  THE  POWERS  93 

ing  paragraph  if  these  persons  are  carried  at  their  own  expense  as 
ordinary  travelers. 

Russia 

(V)  Art.  I.  The  belligerents  have  the  right  not  to  recognize  the 
neutral  character : 

1.  Of  every  vessel  which  carries: 

(a)  Military   detachments   of   the   enemy  belonging  to  his   armed 

forces  of  land  or  sea,  or 

(b)  Individual   passengers  belonging  to  the  armed   forces   of   the 

enemy,  or  the  military  and  official  correspondence  of  the 
enemy  when  the  transportations  of  this  kind  constitute  for 
the  vessel  the  principle  object  of  the  voyage; 

2.  Of  every  vessel  which  takes  a  direct  part  in  the  military  oper- 

ations of  the  enemy  or  else  finds  itself,  by  reason  of  the  state 
of  war,  in  the  service  of  the  enemy; 

3.  Of  every  vessel  which  offers  resistance  to  the  arrest,  visit,  or 

seizure. 

Art.  2.  The  confiscation  of  the  vessels  inentioned  in  article  1  can 
not  occur  except  by  virtue  of  a  sentence  by  the  prize  court. 

Art.  3.  Persons  belonging  to  the  crew  of  the  vessels  mentioned 
in  Article  1  are  recognized  as  prisoners  ot  war. 

Observations 

It  may  be  stated,  as  it  appears  from  the  memoranda  which  have 
treated  the  question  in  its  entirety,  that  a  common  general  idea  is 
admitted,   according  to   which   the  belligerent  can   pursue   a   certain 
number  of  acts,  constituting  on  the  part  of  neutral  merchant  vessels 
an  assistance  given  to  the  enemy.    Therein  lies  a  violation  of  neutral- 
ity which  the  belligerent  is  within  his  right  to  prevent. 
In  this  regard  a  distinction  can  be  made  between : 
(a)   The  case  of  certain  hostile  services  which  are  not  the  special 
object  of  the  voyage  of  the  vessel  (for  example,  transporta- 
tions of  military  detachments,  detached  members  of  the  mili- 
tary, of  enemy  functionaries  or  agents,  of  enemy  diplomatic 
pouches). 
In  such  case,  it  appears  that  up  to  the  present  a  treatment  has  gener- 
ally been  applied  at  first  analogous  to  that  applied  in  matters  of  contra- 
band, that  is,  seizure  of  the  vessel. 


94  NAVAL  CONFERENCE  AT  LONDON 

As  to  the  penalty  itse'f,  all  the  memoranda  not  having  discussed  the 
question,  it  appears  difficult  here  to  draw^  out  at  present  a  general 
principle. 

(b)  The  case  where  the  vessel  is  entirely  or  specially  in  the  service 

of  the  enemy  belligerent  (for  example,  entire  chartering  by 

the  enemy   Government  of   a  vessel  attached  to  an   enemy 

fleet  in  any  military  purpose  v^^hatever). 

The  majority   of   the   memoranda   recognize   that   in   such   a   case 

the  neutral  vessel  must  submit  to  treatment  analogous  to  that  which 

it  would  undergo  if  it  were  an  enemy  merchant  vessel. 

But  in  any  case  actually,  and  without  prejudice  to  the  value  of  the 
provisions  of  new  conventional  rules,  it  does  not  appear  that  the 
assimilation  to  an  enemy  war  vessel  of  a  neutral  vessel  rendering 
hostile  assistance  of  whatever  sort  is  recognized  as  acquired,  in  any 
respect. 

Basis  for  discussion 

33.  Neutral  merchant  vessels  carrying  military  detachments,  de- 
tached members  of  the  military,  enem,y  functionaries  or  agents,  or 
enemy  diplomatic  pouches,  are  liable  to  capture  without  their  trans- 
portation's constituting  the  special  object  of  the  voyage. 

34.  Neutral  merchant  vessels  entirely  or  specially  in  the  service  of 
the  enemy  belligerent  are  liable  to  the  same  treatment  which  they  would 
undergo  if  they  were  enemy  merchant  vessels. 


TRANSFORMATION  OF  MERCHANT  VESSELS 

Views  expressed  by  the  memoranda 

Germany 

1.  The  conversion  of  merchant  vessels  into  war  vessels  contem- 
plated by  the  Convention  on  this  subject  concluded  at  The  Hague, 
October  18,  1907,  can  only  be  done: 

(1)  In  the  ports  and  roads  or  in   the  territorial   waters   of   the 

belligerents ; 

(2)  On  the  open  sea. 

Vessels  thus  converted  can  not  be  reconverted  into  merchant  ves- 
sels during  the  continuance  of  the  war. 


views  expressed  by  the  powers  95 

United  States  of  America 
(Nothing) 

Austria-Hungary 

(F)  The  question  whether  it  is  allowable  to  convert  merchant 
vessels  into  war  vessels  on  the  high  seas  has  not  been  discussed  by 
the  authors.  In  practice  there  is  no  unanimity  in  the  matter.  To 
decide  the  question,  one  can  only  consider  the  legitimate  aspirations 
of  the  interested  parties.  It  can  not  be  affirmed  that  on  the  high 
seas  the  belligerent  can  dispose  of  his  vessels  at  his  will.  It  is  true 
that  his  sovereignty  extends  to  his  vessels.  But  as  the  high  sea  is 
common  to  all  ("omnium  communis")  the  sovereignty  of  each  State 
is  there  limited  by  the  interests  of  other  States. 

This  is  why  the  States  are  within  their  rights  when  they  ask  that 
the  conversion  of  merchant  vessels  into  war  vessels  ought  to  be  per- 
mitted only  under  conditions  guaranteeing  that  pacific  traffic  shall 
have  to  fear  neither  the  reappearance  of  privateers  nor  other  vexa- 
tious measures.  Consequently  the  conversion  of  merchant  vessels 
into  war  vessels  can  not  be  permitted  or  prohibited,  without  re- 
strictions. 

To  conciliate,  in  the  case  in  hand,  the  opposing  interests,  it  would 
perhaps  be  useful  to  forbid  the  reconversion  of  war  vessels  into 
merchant  vessels.  This  the  Austro-Hungarian  delegation  has  al- 
ready stated  in  the  IVth  Commission  of  the  Second  Peace  Conference. 
It  is  true  that  at  that  time  the  said  proposition  did  not  receive  all  the 
votes  although  it  can  not  be  admitted  that  it  would  be  contrary  to  the 
interests  of  anyone  whomsoever. 

If  in  the  future  this  proposition  be  not  more  favorably  received,  other 
means  capable  of  protecting  neutrals  against  the  encroachments  of  the 
belligerents  ought  to  be  sought,  since  every  one  must  desire  a  solution 
of  the  question. 

As  it  appears  from  the  terms  in  which  the  question  has  been  stated 
in  the  program  ("on  the  high  seas")  it  is  important  at  this  time  to 
complete  in  an  essential  point,  the  Convention  Relative  to  the  Trans- 
formation of  Merchant  Vessels  into  War  Vessels,  signed  at  The  Hague 
in  1907.  And,  as  it  appears  from  the  discussions  which  were  held  on 
this  subject  in  the  said  Conference,  it  is  not  a  question,  properly  speak- 
ing, of  establishing  a  definition  of  the  notion  "war  vessel"  but  rather  of 
determining  the  conditions  to  be  fulfilled  by  the  converted  vessels  in 


96  NAVAL  CONFERENCE  AT  LONDON 

order  to  be  allowed  to  exercise  the  right  of  prize  against  neutrals.  In 
order  to  carry  out  this  mission  in  a  real  and  efficacious  manner  they 
would  need  an  armament  of  some  importance  and  a  speed  superior  to 
that  which  merchant  vessels  in  general  possess.  In  establishing  these 
two  conditions  exacted  by  the  very  nature  of  things  there  will  be 
offered  to  neutrals  valuable  guarantees  without  injuring  the  legitimate 
interests  of  the  belligerents. 

Finally,  article  6  of  the  Convention  referred  to  above  would  appear 
insufficient.  If  the  belligerent  is  obliged  only  to  inscribe  the  converted 
vessel  on  the  list  of  his  war  vessels,  the  neutrals,  and  this  is  the  im- 
portant thing,  have  no  knowledge  of  the  conversion  made.  For  this,  a 
notification  would  be  necessary.  In  like  manner,  the  reconversion — if 
it  was  generally  declared  legal,  if  only  in  the  national  ports — ought  to 
be  notified. 

To  sum  up,  the  conversion  could  be  submitted — without  distinguish- 
ing whether  it  must  take  place  in  the  national  waters,  in  the  territorial 
waters  occupied  by  a  belligerent,  or  on  the  high  sea — to  the  following 
supplementary  conditions : 

1.  A  minimum  of  guns  of  a  certain  calibre ; 

2.  A  minimum  of  speed  ; 

3.  Immediate  notification  with  indication  of  the  place  where  the 

conversion,  even  the  reconversion,  has  taken  place ; 

4.  Effective  disarming  in  case  of  reconversion ; 

5.  Mention,  in  the  notification,  of  the  circumstances  relative  to  1, 

2,  and  4 ; 

6.  Responsibility  of  the  State  for  all  damages  sustained  by  third 

States  or  their  ressortusants  growing  out  of  a  contravention 
against  the  rules  enumerated  above. 

Spain 

(F)  There  exist  considerable  juridical  differences  between  a  war 
vessel  and  a  merchant  vessel,  even  if  the  latter  carries  the  belligerent 
flag.  The  difference  is  characterized  and  defined  by  the  relations  of 
the  one  and  the  other  vessel  not  only  with  the  authorities  of  their 
country,  but  with  the  authorities,  the  forces,  and  the  persons  and 
private  properties  of  the  enemy  as  well  as  of  the  neutral  Powers.  If 
an  error  or  simply  an  ambiguity  is  produced  with  regard  to  the  char- 
acter of  the  vessel  it  would  become  impossible  for  third  parties  to 
discern  to  whom  are  forbidden  and  to  whom  are  permitted  the  in- 


VIEWS  EXPRESSED  BY  THE  POWERS  97 

herent  powers  of  military  action  of  the  State.  On  the  other  hand,  the 
rules  which  prevent  the  equipment  of  a  vessel  or  of  a  military  expedi- 
tion in  a  neutral  port  could  result  inefficaciously  if  the  change  of  con- 
dition of  the  vessel  on  the  high  sea  were  permitted.  Each  voyage, 
indeed,  is  regulated  and  qualified  by  the  papers  delivered  in  one  port 
with  destination  of  another.  If  the  State  itself  withdraws  its  vessels 
from  the  effects  of  the  documents,  the  latter  remain  without  value.  For 
all  these  reasons,  the  conversion  of  merchant  vessels  into  war  vessels  on 
the  open  sea  must  be  declared  null. 

France 

(F)  All  the  States,  enjoying  on  a  footing  of  absolute  equality,  on 
the  open  sea,  the  full  exercise  of  their  sovereignty  in  regard  to  the 
vessels  of  their  flag,  are,  in  consequence,  free  to  submit  them  there  to 
such  measures  of  mobilization  or  military  transformation  as  it  suits 
them  to  order. 

Great   Britain 

No  general  practice  of  nations  has  prevailed  in  the  past  on  this  point 
from  which  any  principles  can  be  deduced  and  formulated  as  to  the 
established  rules  of  international  law.  So  far  as  can  be  ascertained 
there  are  no  precedents  on  the  subject. 

The  question  is  regarded  by  His  Majesty's  Government  as  one  to  be 
decided  by  reference  to  the  rights  of  neutrals.  Resistance  on  the  part 
of  a  neutral  merchant  vessel  to  the  exercise  of  the  admitted  belligerent 
right  of  visit  and  search,  involving  as  it  does  the  possible  condemnation 
of  the  vessel  as  good  prize,  is  so  serious  a  matter  for  the  neutral,  that 
it  is  essential  that  there  should  be  no  possibility  of  doubt  as  to  the 
ships  that  are  entitled  to  exercise  this  right.  It  is  submitted  that  the 
true  rule  to  be  deduced  from  the  principles  which  govern  the  relations 
between  belligerents  and  neutrals  is  that  the  exercise  of  the  right  to 
visit  and  bring  in  neutral  merchant  vessels  is  strictly  limited  to  ships 
being,  and  known  to  be,  public  ships  of  the  belligerent  fighting  fleet 
flying  the  pennant.  It  would  be  a  grave  extension  of  that  right  if  it 
were  "held  to  be  permissible  to  exercise  those  powers  by  means  of  ves- 
sels, believed  by  neutrals  to  be  peaceful  merchant  vessels,  suddenly  and 
without  warning  converted  into  ships  of  war,  possibly  in  the  immediate 
neighborhood  of  vessels  which  they  desire  to  stop  and  search.  Any 
further  limitation  to   the   security   of   peaceful   commerce   or   of   the 


98  NAVAL  CONFERENCE  AT  LONDON 

freedom  of  neutral  vessels  to  navigate  the  seas  is  opposed  to  the 
general  interests  of  nations,  vi^hile  the  exercise  of  belligerent  force 
against  neutrals  in  the  manner  indicated  above  w^ould  almost  in- 
evitably lead  to  friction,  w^ith  the  attendant  danger  of  bringing  other 
nations  into  the  arena  of  vv^ar.  The  somewhat  arbitrary  powers  ac- 
corded to  belligerents  as  against  neutrals  for  the  protection  of  the 
vital  interests  of  the  former  should  not,  it  is  submitted,  be  increased 
by  according  sanction  to  proceedings  which,  however  they  may  be 
argumentatively  sustained,  are  entirely  novel  and  without  the  support 
of  any  existing  principles  of  international  law.  His  Majesty's  Gov- 
ernment, therefore,  regard  it  as  of  great  importance  to  neutrals  that 
units  of  the  fighting  force  of  a  belligerent  should  not  be  created  except 
within  the  jurisdiction  of  that  Power. 

The  only  cases  decided  in  the  British  Prize  Courts,  where  any  point 
of  this  kind  has  arisen,  are  some  decisions  on  the  rights  of  the 
original  British  owners  of  ships,  which  have  been  captured  by  the 
enemy,  to  restitution  of  their  property  on  its  subsequent  recapture  by 
the  British  forces.^  The  British  Prize  Act  deprived  the  original 
owner  of  his  right  to  restitution  if  the  vessel  had  been  set  forth  as  a 
ship  or  vessel  of  war.  These  cases  deal  only  with  the  rights  of  the 
respective  groups  of  British  claimants,  as  determined  by  the  Act  of 
Parliament,  and  have,  therefore,  little  or  no  bearing  on  the  general 
question. 

Italy 

(F)  This  question  has  not  been  provided  for  by  the  positive  Italian 
law. 

The  Italian  delegation  to  the  Second  International  Peace  Con- 
ference has  proposed  a  resolution  in  this  regard  in  the  following 
terms : 

"Vessels  which  leave  the  territorial  waters  of  their  country  after 
the  opening  of  hostilities  can  not  change  their  quality  either  on 
the  open  sea  or  in  the  territorial  waters  of  another  State."  (IVth 
Commission,  annex  17.) 

Japan 

A  merchant  vessel  cannot  be  converted  into  a  war  vessel  or  recon- 
verted into  a  merchant  vessel  by  a  belligerent,  if  it  is  not  in  a  port  or 


1  Ceylon,  1  Dodson  105,  2  E.  P.  C.  133 ;  Georgiana,  1  Dodson  397,  2  E.  P.  C.  193. 


VIEWS  EXPRESSED  BY  THE  POWERS  99 

in  the  territorial  waters  belonging  to  the  said  belligerent  or  to  his 
ally,  or  occupied  by  their  military  or  naval  forces. 

Netherlands 

VI.  (1)  The  conversion  of  a  merchant  vessel  into  a  war  vessel 
can  only  take  place  in  the  territory  or  the  territorial  waters  of  the 
Power  whose  flag  it  will  carry. 

(2)  A  merchant  vessel  converted  into  a  war  vessel  can  not  lose  this 
character  before  the  end  of  the  war. 

Russia 

VI.  The  conversion  of  a  merchant  vessel  into  a  war  vessel  can  take 
place  in  the  course  of  hostilities  in  the  territorial  waters  of  the  belliger- 
ent as  well  as  on  the  high  sea.  In  both  cases  belligerents  are  required 
to  observe  the  rule"^  prescribed  by  the  Convention  relative  to  the  con- 
version of  merchant  vessels  into  war  vessels  signed  at  The  Hague, 
October  18,  1907. 

Observations 

The  views  expressed  by  the  memoranda  on  the  conversion  of  mer- 
chant vessels  into  war  vessels  on  the  high  sea  show  that  up  to  the 
present  this  question,  of  relatively  recent  origin,  has  been  decided  by 
the  Governments  according  to  their  own  particular  views  and  there 
does  not  at  present  exist  any  common  principle  in  this  regard  recog- 
nized by  all. 

It  will  be  for  the  Conference  to  examine  the  best  way  to  pursue  to 
put  an  end,  if  possible,  to  the  uncertainty  of  the  law  in  this  matter. 

G 

TRANSFER  OF  FLAG 

Views  expressed  by  the  memoranda 
Germany 

Art.  3.  The  neutral  or  enemy  character  of  a  merchant  vessel  is 
determined  by  the  flag  which  it  carries. 

A  vessel  carrying  a  neutral  flag  can  nevertheless  be  treated  as  an 
enemy  vessel : 


100  NAVAL  CONFERENCE  AT  LONDON 

1.  If  up  to  the  outbreak  of  hostilities  or  within   the  two   weeks 
prior  thereto  it  has  carried  the  enemy  flag. 

United  States  of  America 
(Nothing) 

Austria-Hungary 

(G)  According  to  the  practice  of  almost  all  States,  the  sale  of  an 
enemy  vessel  made  in  course  of  voyage  and  after  the  outbreak  of  hos- 
tilities can  not  prevent  the  capture  of  the  vessel,  the  latter  continuing 
in  the  circumstances  in  question  to  be  considered  as  enemy. 

The  former  French  theory,  by  virtue  of  which  enemy  vessels  could 
not  change  nationality  after  the  outbreak  of  hostilities,  that  is,  lose 
their  character  of  enemy  vessels,  permits  an  excessive  restriction  of 
neutral  commerce,  inasmuch  as  this  commerce  should,  in  principle, 
remain  free,  even  in  time  of  war.  France  herself,  moreover  derogated 
from  this  theory  in  1870. 

Section  26  of  the  draft  for  the  regulation  of  prizes  voted  by  I'ln- 
stitut  de  Droit  International  in  its  session  at  Turin,  seems  to  contain  a 
solution  of  the  question  all  the  more  felicitous  because  it  takes  into 
account  the  interests  of  belligerents  and  neutrals.  The  said  para- 
graph is  thus  worded : 

The  legal  document  showing  the  sale  of  an  enemy  vessel  made 
during  the  war  must  be  perfect  and  the  vessel  should  be  regis- 
tered before  it  leaves  the  port  of  departure,  and  in  accordance 
with  the  laws  of  the  country  whose  nationality  it  acquires.  The 
new  nationality  can  not  be  acquired  by  a  vessel  which  is  sold 
during  a  voyage. 

There  is  no  objection,  moreover,  to  the  establishment  of  supple- 
mentary guaranties  against  injury  by  means  of  fictitious  sales  made 
by  ressortissants  of  one  of  the  belligerents,  to  the  legitimate  interests 
of  the  other  belligerent. 

Spain 

(G)  The  Government  of  H.  C.  M.  considers  acceptable  the  rules 
suggested  by  the  Cabinet  of  London  in  section  7  of  its  memorandum. 
When  the  change  of  the  flag  of  the  vessel  corresponds  to  an  effective 
transfer  of  ownership  or  to  other  motives  of  a  private  order,  its 
validity  will  be  recognized,  but  if  it  is  the  result  of  the  intention  to 


VIEWS  EXPRESSED  BY  THE  POWERS  101 

avoid,  by  simulation,  the  risks  existant  to-day  for  private  enemy  prop- 
erty in  case  of  maritime  war  it  must  be  considered  null. 

France 

(G)  The  change  of  nationality  of  merchant  vessels  effected  after 
the  declaration  of  war  is  null  and  without  efifect.  The  transfer  which 
has  occurred  prior  to  the  declaration  of  war  and  in  a  regular  manner 
is  valid.  The  date  of  the  transfer  to  a  neutral  flag  prior  to  the  decla- 
ration of  war  must  be  established  by  authentic  documents  found  on 
board  and  the  transfer  must  have  been  followed  by  a  registration 
before  the  competent  authorities. 

An  act  of  naturalization  which  has  been  granted  by  a  neutral 
Government  in  favor  of  the  owner  of  the  vessel  after  the  declaration 
of  war  must  be  held  as  suspicious.  It  is  necessary  in  this  case  to  act 
according  to  the  circumstances  and  other  indications  collected,  es- 
pecially according  cO  the  place  of  construction  of  the  vessel,  the  com- 
position of  its  crew,  the  observance  of  the  national  conditions  imposed 
on  the  flag  raised. 

Great  Britain 

1.  The  assignment,  either  by  sale  or  gift,  to  a  neutral  of  an  enemy 
ship,  other  than  a  ship  of  war,  is  not  rendered  invalid  merely  by  the 
fact  that  it  was  made  during  or  in  contemplation  of  hostilities.^ 

2.  Such  an  assignment  is  not,  however,  valid  if — 
(a)   It  is  made  in  a  blockaded  port.- 

(&)  It  is  made  in  the  course  of  a  voyage.  For  this  purpose  a 
voyage  is  at  an  end  as  soon  as  the  ship  reaches  a  port  where  she 
can  actually  be  delivered  into  the  possession  of  the  transferee.^ 

(c)  The  vendor  retains  any  share  in  the  ship,  or  if  there  is  an  agree- 
ment to  reconvey  her  at  the  end  of  the  war.* 

3.  The  onus  of  proving  that  the  transfer  is  genuine  lies  on  the 
claimant  and  the  assignment  must  be  complete,  bona  fide,  and  for 
good  consideration. 


^Benedict,  Spinks  314,  2  E.  P.  C.  527;  Baltica.  11  Moore,  P.  C.  141,  2  E.  P.  C. 
628;  Minerva,  6  C.  Rob.  396.  1  E.  P.  C.  591. 

2  General  Hamilton,  6  C.  Rob.  62,  1  E.  P.  C.  528. 

^Danckcbaar  Africaan.  1  C.  Rob.  112,  1  E.  P.  C.  74;  Vrow  Margaretha,-  1 
C.  Rob.  336,  1  E.  P.  C.  149 ;  Jan  Frederick,  5  C.  Rob.  128,  1  E.  P.  C.  435 ;  Baltica, 
11  Moore,  P.  C.  141,  2  E.  P.  C.  628. 

*  Sechs  Gcschwister,  4  C.  Rob.  100,  1  E.  P.  C.  363 ;  Novdt  Gedacht,  2  C.  Rob. 
137,  note. 


102  NAVAL  CONFERENCE  AT  LONDON 

A  vessel  transferred  to  a  neutral  flag  is,  therefore,  still  liable  to  be 
condemned  by  the  prize  court  if  the  circumstances  of  the  transfer 
are  attended  with  suspicion  not  removed  by  the  claimant,^  as,  for  ex- 
ample, if : 

(a)  No  documentary  evidence  of  the  assignment  is  found  on  board 
at  the  time  of  the  seizure; 

(b)  The  transferor  has  any  control  over  the  ship,  reservation  of 
profits,  or  power  to  revoke  the  assignment ; 

(c)  Possession  has  not  been  taken  by  the  alleged  transferee,  or  by 
some  agent  of  his  who  is  not  an  enemy ; 

(d)  The  ship  is  under  the  control  of  an  enemy ; 

(e)  The  master  or  other  person  in  command  is  in  the  service  of  an 
enemy. 

Italy 

(g)  "Italian  nationality  can  not  be  granted  to  any  vessel  arising 
from  the  sale  which  shall  have  been  made  by  an  individual  subject 
of  a  Power  which  is  in  a  state  of  war  with  another  Power  which 
shall  be  in  a  state  of  peace  with  the  Government  of  the  King. 

"The  minister  of  the  marine  can  always,  if  the  verity  of  the  sale 
is  established,  grant  the  nationalization  of  the  vessel."  (Cod.  M.  M., 
art.  42.) 

It  results  from  this  provision  that  according  to  the  spirit  of  Italian 
positive  law  the  sale  of  an  enemy  vessel  to  a  neutral  purchaser  after  the 
outbreak  of  hostilities  is  presumed  to  be  fictitious  and  as  such  it  can 
not  be  recognized.  Proof  to  the  contrary  is,  however,  admitted  with 
quite  special  guaranties. 

The  Council  of  Diplomatic  Claims  expresses  itself  in  an  analogous 
sense.  It  has  declared,  indeed,  that  the  transfer  of  the  ownership  of 
a  vessel  can  not  be  considered  valid  if  it  is  not  shown  by  the  ship's 
papers,  and  there  would  be  no  reason  to  take  account  of  a  sale  which 
could  not  be  registered  on  the  papers  because  the  vessel  was  in  transitu. 
It  results,  however,  from  the  opinion  as  a  whole  that  the  proof  of  the 
reality  and  of  the  legality  of  the  sale  is  admitted.  (Cont.  dipl.,  June 
16,  1866,  capture  of  the  ship  Venezia.) 


^Vigilantia,  1  C.  Rob.  1,  1  E.  P.  C.  31;  Endraught,  1  C.  Rob.  19;  Welvaart, 

1  C.  Rob.  122;  Juffrouw  Anna,  1  C.  Rob.  124,  1  E.  P.  C.  76;  Novdt  Gedacht, 

2  C.  Rob.  137,  note;  Jemmy,  4  C.  Rob.  31,  1  E.  P.  C.  331;  Soglasie,  Spinks  105; 
Ernst  Merck,  Spinks  99,  2  E.  P.  C.  338;  Ariel,  11  Moore,  P.  C.  110,  2  E.  P.  C. 
600;  Christine,  Spinks   82,  2  E.  P.  C.  320. 


views  expressed  by  the  powers  103 

Japan 

The  transfer  of  ownership  of  a  vessel  in  the  course  of  or  in  anti- 
cipation of  war  by  the  enemy  State  or  by  an  enemy  person  to  another 
person  having  his  domicile  in  the  other  belligerent  State  or  an  allied 
State,  or  in  a  neutral  State,  is  valid  only  if  sufficient  proof  is  furnished 
of  a  complete  and  bona  fide  transfer. 

In  the  case  where  the  ownership  of  a  vessel  is  transferred  pending 
the  completion  of  its  voyage,  such  transfer  should  not  be  considered 
as  in  good  faith  and  complete  until  the  actual  delivery. 

Netherlands 

VII.  (1)  The  vahdity  of  the  transfer  of  merchant  vessels  from  a 
belligerent  flag  to  a  neutral  one  during  or  at  the  beginning  of  hostil- 
ities is  recognized  without  restriction. 

(2)  A  merchant  vessel  transferred  from  a  belligerent  flag  to  a 
neutral  flag  in  a  blockaded  port  or  on  a  blockaded  coast  can  not  claim 
the  treatment  accorded  to  a  neutral  flag. 

Russia 

VII.  The  belligerents  have  the  right  of  not  recognizing  the  neutral 
character  of  a  merchant  vessel  bought  by  neutral  persons  from  an 
enemy  State  or  one  of  its  ressortissants  unless  the  new  owner  proves 
that  the  acquisition  was  completed  before  he  had  knowledge  of  the 
commencement  of  the  war. 

Observations 

The  transfer  of  a  vessel  can  not  be  admitted  when  the  object  in 
view  is  to  escape  the  consequences  to  which  its  character  of  enemy 
vessel  exposes  it. 

The  most  of  the  memoranda  presenting  the  existing  law  have  fol- 
lowed different  ways  in  interpreting  and  applying  this  common  prin- 
ciple. The  proof  being  difficult  in  such  a  matter,  some  simple  or 
absolute  presumptions,  more  or  less  justified,  have  been  laid  down, 
particularly  when  the  transfer  takes  place  in  the  course  of  hostilities. 
In  such  a  case,  according  to  all  the  memoranda,  the  absolute  presump- 
tion of  nullity  does  not  constitute  a  general  rule  except  in  the  case 
of  a  transfer  in  transitu. 


104  NAVAL   CONFERENCE  AT   LONDON 

The  common  practice  tends  to  recognize  the  validity  of  the  transfer 
before  the  outbreak  of  hostiUties  whenever  this  transfer  has  occurred 
regularly,  that  is,  when  there  is  nothing  fictitious  or  irregular  about  it 
which  renders  it  suspicious. 

Basis  for  discussion 

35.  A  vessel  can  not  he  transferred  to  a  neutral  flag  for  the  purpose 
of  escaping  the  consequences  to  zvhich  its  character  of  enemy  vessel 
exposes  it. 

36.  The  transfer  effected  before  the  outbreak  of  hostilities  is  valid 
if  it  has  occurred  regularly,  that  is,  if  there  is  nothing  fictitious  or 
irregular  about  it  zvhich  renders  it  suspicious. 

Z7.  After  the  outbreak  of  hostilities,  there  is  an  absolute  presump- 
tion of  nullity  of  the  transfer  zvhich  is  made  zvhile  the  vessel  is  in 
transitu. 

H 

ENEMY  CHARACTER 

Viezvs  expressed  by  the  metnoranda 
Germany 

Art.  3.  The  neutral  or  enemy  character  of  a  merchant  vessel  is 
determined  by  the  flag  which  it  carries. 

A  vessel  flying  a  neutral  flag  may  nevertheless  be  treated  as  an 
enemy  vessel : 

(1)  If  up  to  the  opening  of  hostilities  or  within  the  two  weeks  prior 

thereto,  it  has  carried  the  enemy  flag; 

(2)  If  it  actually  makes  a  voyage  which  has  only  been  authorized 

by  the  enemy  government  after  the  opening  of  hostilities  or 
within  the  two  months  prior  thereto ; 

(3)  If  it  is  chartered  entirely  by  the  enemy  government. 

Art.  4.  The  neutral  or  enemy  character  of  the  goods  found  on  board 
an  enemy  vessel  is  determined  by  the  nationality  of  the  one  who 
carries  the  risk  of  fortuitous  loss  during  the  voyage.  Any  agreement 
between  the  interested  parties  which  modifies  the  general  rules  of  the 
law  regarding  the  transfer  of  risks  is  considered  null  and  void  when  it 
has  been  made  either  in  anticipation  of  a  war  or  after  the  opening  of 
hostilities. 


VIEWS   EXPRESSED  BY  THE  POWERS  105 

If  the  person  who  carries  the  risks  can  not  be  determined  by  the 
ship's  papers,  there  is  a  presumption  that  the  risks  are  carried  by  the 
consignee  of  the  goods  and  in  the  case  where  the  latter  can  not  be 
determined,  either,  by  a  national  of  the  enemy  Power. 

If  the  nationality  of  the  one  who  carries  the  risks  is  not  known  and 
can  not  be  established  by  the  ship's  papers  it  is  presumed  to  be  enemy. 

The  presumptions  mentioned  in  paragraphs  2  and  3  can  be  rebutted. 

Art.  5.  Neutral  goods  found  on  an  enemy  vessel  can  be  treated  as 
enemy  goods : 

(1)  If  they  have  been  clothed  with  neutral  quality  only  on  board 

the  vessel  and  after  the  opening  of  hostilities ; 

(2)  If  the  one  who  carries  the  risks  has  possessed  enemy  character 

and  has  changed  therefrom  only  after  the.  opening  of  hos- 
tilities or  within  the  two  months  prior  thereto ; 

(3)  If,  in  case  of  capture  of  the  goods,  the  enemy  government  in- 

demnifies ^or  the  loss. 

United  States  of  America 
(Nothing) 

Austria-Hungary 

I.     As  to  the  oivnership  of  vessels 

The  neutral  or  enemy  character  of  a  vessel  is  determined  in  the  first 
place  by  the  flag  of  the  vessel. 

The  question  whether  the  vessel  is  authorized  to  fly  the  flag  which 
it  shows  must  be  determined  according  to  the  laws  of  the  State  whose 
flag  the  vessel  is  flying.  (§25  of  the  Regulation  of  Prizes  adopted  at 
Turin  by  I'lnstitut  de  Droit  International.) 

Inasmuch  as  the  character,  enemy  or  neutral,  of  a  vessel  is  determined 
by  the  person  of  the  owner,  account  can  in  all  justice  be  taken  only  of 
the  nationality  and  not  of  the  domicile  of  the  party  at  interest.  And 
this  for  the  following  reasons : 

1.  The  principle  of  domicile  is  rejected  by  almost  all  the  States. 

2.  It  is  the  nature  of  things  that  only  the  rcssortissants  of  the  enemy 

State,  and  not  those  of  neutral  States,  can  be  considered  as 
enemy  owners. 

3.  The  partisans  of  the  principle  of  domicile  urge  a  certain  analogy 

with   war  on  land,   since,   in  the  latter,   neutrals   who   live  in 
enemy  territory  can  not  either  avoid  the  suflferings  of  war. 


106  NAVAL  CONFERENCE  AT  LONDON 

But  the  "Convention  Respecting  the  Rights  and  Duties  of 
Neutral  Pow  ,rs  and  Persons  in  Case  of  War  on  Land"  declares 
expressly :  "The  nationals  of  a  State,  which  is  not  taking  part 
in  the  war,  are  considered  as  neutrals." 

4.  The  neutral  who  lives  in  the  enemy  territory  is  not  called  to  the 

colors,  while  this  is  the  case  with  the  rcssortissants  of  the  bellig- 
erent who  have  their  domicile  in  neutral  territory.  (Kleen, 
Lois  et  Usages  de  la  Neutralite,  vol.  I,  p.  147  et  seq.) 

5.  The  principle  of  the  domicile  "will  always  remain  vague  and 

capricious  while  nationality  is  clear  and  can  be  easily  estab- 
lished."     (Kleen,  op.  cit.) 

6.  The  principle  of  domicile  would  force  a  State  to  consider  its  own 

ressortissants  as  enemies,  an  absurd  and  immoral  consequence. 

For  all  these  reasons  it  would  be  desirable  to  accept  the  principle  of 
nationality  as  being  more  practical  and  from  the  legal  point  of  view, 
more  just.    (Cf.  Calvo,  Droit  International,  vol.  Ill,  p.  59  et  seq.) 

Only  the  principle  of  nationality,  moreover,  corresponds  to  the  legiti- 
mate interests  of  neutral  commerce.  It  is  true  that  its  too  rigorous 
application  would  do  injury  to  neutral  countries  in  whose  territory 
there  are  ressortissants  of  belligerent  States.  The  advantage  to  the 
belligerent  State  to  be  able  to  injure  the  subjects  of  his  adversary 
through  their  property  is  trifling.  This  is  why  the  principle  of  na- 
tionality could,  perhaps — and  this  would  be  the  most  equitable  solu- 
tion— be  combined  with  the  principle  of  domicile  and  it  be  stipulated 
that:  The  ressortissants  of  the  enemy  State  who  have  their  domicile 
therein  shall  be  considered  enemy  owners. 

II.     As  to  the  ozvnership  of  the  goods 

The  reasons  above  enumerated  argue  in  favor  of  a  solution  by  which 
only  the  goods  belonging  to  enemy  nationals  should  be  considered  as 
enemy  goods.  This  solution  would  be  conformable  to  the  opinion  of 
almost  all  the  States  and  of  almost  all  the  continental  authors. 

The  question  whether,  during  the  transportation  of  goods,  they 
belong  to  the  consignor  or  to  the  consignee,  should,  without  doubt, 
be  determined  according  to  the  contract  existing  between  them  unless 
the  transfer  of  the  goods  has  been  pretended. 

Besides,  it  would  be  equitable  to  extend  to  goods  the  application  of 
the  principle  which  has  just  been  adopted  for  the  vessels,  that  is,  of 
considering  as  enemy  goods  only  the  goods  whose  owners  are  ressortis- 


VIEWS  EXPRESSED  BY  THE  POWERS  107 

sants  of  an  enemy  State  and  have  their  domicile  therein.  Because  be- 
tween the  property  of  persons  who  live  in  neutral  States  and  the  enemy 
State  there  exists  no  relation  such  that  the  belligerent  would  have  a 
legitimate  interest  for  seizing  it. 

Spain 

(H)     Influence  of  the  nationality  of  the  owner  on  the 
character  of  the  vessel 

It  is  by  the  flag  that  the  virtuality  of  fixing  the  belligerent  or  neutral 
character  of  the  vessel  must  be  recognized,  the  flag  being  ostensible  and 
the  ownership  not.  As  to  the  right  of  the  vessel  to  fly  a  particular 
flag,  the  law  of  the  country  concerned  is  applicable. 

(I)     Influence  of  the  nationality  of  the  owner  on  the 
character  of  the  goods 

1.  The  principle  of  the  domicile  of  the  owner  serving  as  a  basis  for 
establishing  the  belligerent  or  neutral  character  of  the  goods,  seems 
from  the  practical  point  of  view  the  most  useful  for  avoiding  the  diffi- 
culties which  the  system  of  nationality  would  cause. 

2.  The  principles  adopted  relative  to  the  change  of  flag  of  vessels 
during  the  war  become  applicable  to  the  transfer  of  goods  on  voyage 
so  far  as  the  nature  of  the  case  permits.  In  the  case  as  well  of  de- 
termining whether  the  goods  belong  at  a  given  moment  to  the  con- 
signor or  to  the  consignee,  to  the  vendor  or  to  the  purchaser,  the  rules 
which  govern  private  contracts  shall  be  taken  into  account  provided 
there  be  no  simulation. 

France 

(H)  All  goods  whose  owner  is  enemy  are  enemy  goods.  All  goods 
whose  owner  is  neutral  are  neutral  goods. 

Every  owner  of  enemy  nationality  is  enemy.  Every  owner  of 
neutral  nationality  is  neutral. 

One  must  hold  as  suspicious  an  act  of  naturalization  on  the  part  of  a 
neutral  government  in  favor  of  the  owner  occurring  after  the  declara- 
tion of  war. 

Great  Britain 

1.  The  principle  adopted  by  the  British  courts  has  been  to  treat  the 
domicile  of  the  owner  as  the  dominant  factor  in  deciding  whether 
property  captured  in  time  of  war  is  enemy  property;    but  for  this 


108  NAVAL  CONFERENCE  AT  LONDON 

purpose  the  principle  is  not  limited  in  all  respects  to  the  domicile  of 
origin  or  residence,  and  is  applied  in  the  following  way  •} 

(a)  A  person  domiciled  in  a  neutral  country,  but  having  a  house  of 

trade  in  an  enemy  country,  is  deemed  to  acquire  a  commercial 
domicile  in  the  enemy  country  in  respect  of  transactions 
originating  there ;  -  but  the  other  property  of  such  an  owner 
is  not  affected  thereby.^ 

(b)  A  commercial  domicile  not  being  the  domicile  of  nationality 

is  terminated  when  actual  steps  are  taken  bona  fide,  to  abandon 
such  domicile  for  a  different  one  sine  aniino  revertendi^ 

2.  This  principle  applies  equally  to  the  cases  of  an  individual,  a 
partnership,  or  a  corporation,  residence  in  the  two  latter  cases  being 
understood  to  mean  the  place  whence  the  business  is  controlled.^ 

3.  In  the  case  of  a  partnership  where  one  or  more  of  the  partners  is 
domiciled  in  enemy  territory,  property  not  liable  to  be  seized  as  enemy 
property  on  other  grounds  is  presumed  to  be  divided  proportionately 
between  the  partners,  and  the  share  attributed  to  a  partner  domiciled 
in  enemy  territory  is  deemed  to  be  enemy  property.^ 

Italy 

{h)  This  question  can  be  raised  either  as  to  the  vessel  or  as  to  the 
goods. 

1.  As  to  the  vessel  there  is  some  reason  to  consider  how  the  prin- 
ciple according  to  which  the  neutral  or  enemy  character  of  the  vessel 
depends  on  the  flag,  conforms  to  the  Italian  law ;  and  it  is  according 
to  the  law  of  the  State  to  which  this  flag  belongs  that  the  right  of  the 
vessel  legitimately  to  fly  the  flag  in  question  must  be  determined. 

2.  According  to  the  Italian  public  and  private  law  the  character  of 
the  goods  must  depend  on  the  nationality  and  not  the  domicile  of  the 
owner ;   and  in  this  sense  the  Italian  legislator  has  incidentally  decided 


^Postilion,  Hay  and  Marriott,  245,  1  E.  P.  C.  20;  Harmony,  2  C.  Rob.  322. 

1  E.  P.  C.  241;  Aina,  Spinks   8,  2  E.  P.  C.  247;  Gerasimo,  11  Moore,  P.  C.  88, 

2  E.  P.  C.  577,  582. 

2  Dictum  of  Lord  Stowell  in  Jonge  Klassina,  5  C.  Rob.  302,  1  E.  P.  C.  488 ; 
cases  cited  in  Vigilantia,  1  C.  Rob.  1,  1  E.  P.  C.  31. 

3  Portland,  3  C.  Rob.  43. 

^Indian  Chief,  3  C.  Rob.  11,  1  E.  P.  C.  251. 

5  Cases  cited  in  Vigilantia,  1  C.  Rob.  1,  1  E.  P.  C.  31;  see  judgment  of  Lord 
Lindley  in  Janson  v.  Driefontein  Consolidated  Mines,  Limited,  Law  Reports, 
1902,  Appeal  Cases,  p.  505. 

6  Citto,  3  C.  Rob.  38 ;  Harmony,  2  C.  Rob.  322,  1  E.  P.  C.  241. 


VIEWS  EXPRESSED  BY   THE  POWERS  109 

the  question  in  hand  as  appears  by  the  analogy  of  art.  42  of  the  code 
of  merchant  marine  (see  letter  (^r)  above). 

Indeed  the  Italian  legislator,  having  to  choose  as  the  basis  of  all 
judicial  reports,  even  those  simply  patrimonial,  between  nationality 
and  domicile,  has  always  preferred  nationality.  Moreover,  from  the 
point  of  view  of  the  public  law  and  according  to  considerations  of  a 
political  order,  the  war  being  essentially  a  public  and  political  con- 
dition, it  appears  that  the  quality  of  enemy  can  not  logically  be  extended 
in  principle  and  for  all  purposes  beyond  the  individuals  belonging  to 
the  one  or  the  other  belligerent  communities.  It  appears,  also,  that 
the  State  can  not  accept  a  doctrine  which  would  compel  it  to  consider 
as  enemies  in  some  respects  its  own  subjects,  for  the  sole  reason  that 
they  might  have  their  domicile  abroad  while  this  circumstance  would 
not  be  sufficient  to  exempt  them  from  their  military  and  political 
obligations  to  their  native  country. 

Japan 

I.  Enemy  goods  are: 

(a)  Vessels  in  the  service  of  the  enemy  State,  voluntarily  or  by  con- 

straint ; 

(b)  Vessels   navigating   under   an   enemy   flag   or   with   an   enemy 

clearance ; 

(c)  Vessels  belonging  in  whole  or  in  part  to  the  enemy  State  or  to 

an  enemy  person  ; 

(d)  Vessels  whose  ownership  has  been  transferred  in  the  course  of 

or  in  anticipation  of  hostilities  by  the  enemy  State  or  by  an 
enemy  person  to  another  person  having  his  domicile  in  the 
other  belligerent  State,  or  in  an  allied  State,  or  in  a  neutral 
State,  unless  there  is  proof  of  a  transfer  complete  and  in  good 
faith  of  the  ownership.  If  the  transfer  of  ownership  is  made 
while  the  vessel  is  making  the  voyage,  it  should  not  be  con- 
sidered as  of  good  faith  and  complete  until  actual  delivery. 

II.  Enemy  goods  are: 

(a)  Goods  belonging  to  the  enemy  State  or  to  an  enemy  person. 

(b)  Products  of  the  soil  of  the  enemy  State  belonging  to  the  owner 

of  the  ground. 

(c)  The  cargo  consigned  to  the  enemy  State  or  to  an  enemy  person 

or  agent,  including  the  cargo  loaded  before  but  in  anticipa- 
tion of  the  opening  of  hostilities. 


110  NAVAL  CONFERENCE  AT  LONDON 

(d)   The  t^argo  consigned,  in  the  course  of  or  in  anticipation  of 
hostilities,  by  the  enemy  State  or  by  an  enemy  person  or 
agent  to   another  person   having   his   domicile   in  the   other 
belligerent  State  or  its  ally  or  in  a  neutral  State.     However, 
if  it  is  clearly  established  that  the  ownership  of  the  said  cargo 
belongs  to  the  consignee  it  is  exempt  from  confiscation. 
The  goods  belonging  to  the  enemy  State  or  to  an  enemy  person  which 
are  the  object  of  a  transfer  in  the  course  of  a  voyage  are  considered 
as  enemy  goods  until  the  actual  delivery. 
III.  Enemy  persons  are: 

(a)  Persons  having  their  domicile  in  the  enemy  State  or  who  are 

engaged  in  the  service  of  the  enemy  State,  whatever  be  their 
nationality. 

(b)  Persons  engaged  in  business  in  the  enemy  State  in  what  con- 

cerns this  business. 

Netherlands 

VIII.  (1)  The  "enemy"  or  "neutral"  character  of  the  vessel  is  de- 
termined by  its  flag. 

(2)  The  "enemy"  or  "neutral"  character  of  the  cargo  depends  on 
the  domicile  of  the  owner. 

Russia 

VIII.  The  nationality  of  the  vessel  is  determined  by  the  flag  which 
it  has  the  right  to  carry. 

The  nationality  of  the  cargo  is  determined  by  the  nationality  of  its 
owner. 

Observations 

tjp  to  the  present  it  is  an  acquired  principle  that  private  enemy 
property  on  the  sea  is  liable  to  capture,  but  that  neutral  commerce 
with  the  enemy  is  free. 

Every  commercial  transaction  supposing,  necessarily,  two  or  more 
persons,  it  is  only  the  commerce  considered  from  the  unilateral  point 
of  view  of  the  enemy  that  the  belligerent  has  the  right  to  pursue. 

To  determine  the  enemy  character  of  vessels  or  of  goods  the  practice 
followed  to  this  time  takes  into  consideration  either  the  nationality,  the 
domicile,  or  the  principal  establishment  of  the  owner. 

So  far  as  the  vessels  are  specially  concerned,  however,  most  of  the 
memoranda  consider  that  the  neutral  or  enemy  character  is  deter- 


VIEWS  EXPRESSED  BY  THE  POWERS  111 

mined  by  the  flag  carried  by  the  vessel  in  conformity  to  the  laws  which 
govern  the  flying  of  this  flag. 

Besides  it  seems,  indeed,  that  it  is  a  principle  generally  recognized 
that  the  vessel  under  an  enemy  flag  is  considered  as  an  enemy  vessel. 

But  can  every  vessel  under  neutral  flag  be  equally  considered  as 
neutral,  setting  aside  the  special  case  where  the  vessel  by  virtue  of 
special  penal  law  would  incur  a  treatment  analogous  to  that  of  an 
enemy  vessel  ? 

Basis  for  discussion 

38.  The  neutral  or  enemy  character  of  a  vessel  is  determined  in  the 
first  place  by  the  flag  regularly  carried. 

Observations 

As  to  the  goods,  can  it  at  least  be  said,  as  a  general  rule,  that  it  is 
the  neutral  or  enemy  character  of  the  regular  owner  that  is  taken  into 
consideration,  whether  one  admits  afterwards  as  a  criterion  in  this 
respect,  his  nationality,  his  domicile,  or  his  principal  establishment? 

Basis  for  discussion 

39.  The  neutral  or  enemy  character  of  the  goods  is  determined  by  the 
neutral  or  enemy  character  of  the  one  zvho  is  the  regular  owner  of 
the  goods. 


Declaration  Concerning  the  Laws  of  Maritime  War^ 

[Translation] 

His  Majesty  the  German  Emperor,  King  of  Prussia;  the  President 
of  the  United  States  of  America;  His  Majesty  the  Emperor  of  Aus- 
tria, King  of  Bohemia,  etc.,  and  ApostoHc  King  of  Hungary ;  His 
Majesty  the  King  of  Spain ;  the  President  of  the  French  RepubHc ; 
His  Majesty  the  King  of  the  United  Kingdom  of  Great  Britain  and 
Ireland  and  of  the  British  Dominions  beyond  the  Seas,  Emperor  of 
India;  His  Majesty  the  King  of  Italy;  His  Majesty  the  Emperor  of 
Japan;  Her  Majesty  the  Queen  of  the  Netherlands;  His  Majesty  the 
Emperor  of  All  the  Russias. 

Having  regard  to  the  terms  in  which  the  British  Government  invited 
various  Powers  to  meet  in  conference  in  order  to  arrive  at  an  agree- 
ment as  to  what  are  the  generally  recognized  rules  of  international  law 
within  the  meaning  of  Article  7  of  the  Convention  of  18th  October, 
1907,  relative  to  the  establishment  of  an  International  Prize   Court ; 

Recognizing  all  the  advantages  which  an  agreement  as  to  the  said 
rules  would,  in  the  unfortunate  event  of  a  naval  war,  present,  both  as 
regards  peaceful  commerce,  and  as  regards  the  belligerents  and  their 
diplomatic  relations  with  neutral  Governments ; 

Having  regard  to  the  divergence  often  found  in  the  methods  by 
which  it  is  sought  to  apply  in  practice  the  general  principles  of  inter- 
national law ; 

Animated  by  the  desire  to  insure  henceforward  a  greater  measure  of 
uniformity  in  this  respect ; 

Hoping  that  a  work  so  important  to  the  common  welfare  will  meet 
with  general  approval ; 

Have  appointed  as  their  plenipotentiaries,  that  is  to  say : 


1  Signed  at  London,  February  26,  1909.  Ratification  advised  by  the  Senate  of 
the  United  States,  April  24,  1912.  Adversely  acted  on  by  the  Parliament  of 
Great  Britain.  The  text  of  this  Convention  and  the  following  report  is  taken 
from  the  copy  printed  for  the  use  of  the  U.  S.  Senate,  a  reprint  of  which  ap- 
pears in  Foreign  Relations  of  the  United  States,  1909,  pp.  318.  304.  For  the 
original  French  text,  see  the  British  Parliamentary  Paper,  Miscellaneous,  No.  5 
(1909),  pp.  381,  342  [Cd.  4555]  ;  Naval  War  College,  International  Law  Topics; 
The  Declaration  of  London  of  February  26,  1909  (Government  Printing  Office, 
Washington,  1910),  pp.  169,  12.  For  other  translations  of  the  Declaration  and 
Report,  see  Naval  War  College,  ibid.,  pp.  169  and  13;  British  Parliamentary 
Paper,  Miscellaneous,  No.  4  (1909),  pp.  73  and  33.    [Cd.  4554.] 


THE  DECLARATION  OF  LONDON  113 

His  Majesty  the  German  Emperor,  King  of  Prussia: 

Mr.  Kriege,  Privy  Councilor  of  Legation  and  Legal  Adviser  to  the 
Department  for  Foreign  Affairs,  member  of  the  Permanent  Court  of 
Arbitration. 

The  President  of  the  United  States  of  America : 

Rear  Admiral  Charles  PL  Stockton,  retired ; 

Mr.  George  Grafton  Wilson,  professor  at  Brown  University  and 
lecturer  on  international  law  at  the  Naval  War  College  and  at  Harvard 
University. 

His  Majesty  the  Emperor  of  Austria,  King  of  Bohemia,  etc.,  and 
Apostolic  King  of  Hungary  : 

His  Excellency  Mr.  Constantin  Theodore  Dumba,  Privy  Councilor 
of  His  Imperial  and  Royal  Apostolic  Majesty,  Envoy  Extraordinary 
and  Minister  Plenipotentiary. 

His  Majesty  the  King  of  Spain : 

Mr.  Gabriel  Maura  y  Gamazo,  Count  de  la  Mortera,  Member  of 
Parliament. 

The  President  of  the  French  Republic: 

Mr.  Louis  Renault,  professor  of  the  Faculty  of  Law  at  Paris,  Hon- 
orary Minister  Plenipotentiary,  Legal  Adviser  to  the  Ministry  of  For- 
eign Affairs,  member  of  the  Institute  of  France,  member  of  the  Per- 
manent Court  of  Arbitration. 

His  Majesty  the  King  of  the  United  Kingdom  of  Great  Britain  and 
Ireland,  and  of  the  British  Dominions  beyond  the  Seas,  Emperor  of 
India : 

The  Earl  of  Desart,  K.C.B.,  King's  Proctor. 

His  Majesty  the  King  of  Italy: 

Mr.  Guido  Fusinato,  Councilor  of  State,  Member  of  Parliament,  ex- 
Minister  of  Public  Instruction,  member  of  the  Permanent  Court  of 
Arbitration. 

His  Majesty  the  Emperor  of  Japan : 

Baron  Toshiatsu  Sakamoto,  Vice  Admiral,  Head  of  the  Department 
of  Naval  Instruction. 

Mr.  Enjiro  Yamaza,  Councilor  of  the  Imperial  Embassy  at  London. 

Her  Majesty  the  Queen  of  the  Netherlands: 

His  Excellency  Jonkheer  J.  A.  Roell,  Aide-de-camp  to  Her  Majesty 
the  Queen  in  extraordinary  service,  Vice  Admiral  retired,  ex-Minister 
of  Marine. 

Jonkheer  L.   H.   Ruyssenaers,   Envoy   Extraordinary  and   Minister 


114  NAVAL  CONFERENCE  AT   LONDON 

Plenipotentiary,  ex-Secretary  General  of  the  Permanent  Court  of 
Arbitration. 

His  Majesty  the  Emperor  of  all  the  Russias: 

Baron  Taube,  Doctor  of  Laws,  Councilor  to  the  Imperial  Ministry 
of  Foreign  Afifairs,  professor  of  international  law  at  the  University  of 
St.  Petersburg. 

Who,  after  having  communicated  their  full  powers,  found  to  be  in 
good  and  due  form,  have  agreed  to  make  the  present  Declaration: 

Preliminary  Provision 

The  signatory  Powers  are  agreed  that  the  rules  contained  in  the 
following  chapters  correspond  in  substance  with  the  generally  recog- 
nized principles  of  international  law. 

Chapter  I — Blockade  in  Time  of  War 

Article  1 

A  blockade  must  not  extend  beyond  the  ports  and  coasts  belonging 
to  or  occupied  by  the  enemy. 

Article  2 

In  accordance  with  the  Declaration  of  Paris  of  1856,  a  blockade, 
in  order  to  be  binding,  must  be  effective — that  is  to  say,  it  must  be 
maintained  by  a  force  sufftcient  really  to  prevent  access  to  the  enemy 
coastline. 

Article  3 

The  question  whether  a  blockade  is  effective  is  a  question  of  fact. 

Article  4 

A  blockade  is  not  regarded  as  raised  if  the  blockading  force  is  tem- 
porarily withdrawn  on  account  of  stress  of  weather. 

Article  5 

A  blockade  must  be  applied  impartially  to  the  ships  of  all  nations. 

Article  6 

The  commander  of  a  blockading  force  may  give  permission  to  a 
war-ship  to  enter,  and  subsequently  to  leave    a  blockaded  port. 

Article  7 

In  circumstances  of  distress,  acknowledged  by  an  officer  of  the 
blockading  force,  a  neutral  vessel  may  enter  a  place  under  blockade 


THE  DECLARATION  OF  LONDON  115 

and  subsequently  leave  it,  provided  that  she  has  neither  discharged  nor 
shipped  any  cargo  there. 

Article  8 

A  blockade,  in  order  to  be  binding,  must  be  declared  in  accordance 
with  Article  9,  and  notified  in  accordance  with  Articles  11  and  16. 

Article  9 

A  declaration  of  blockade  is  made  either  by  the  blockading  Power 
or  by  the  naval  authorities  acting  in  its  name. 
It  specifies — 

( 1 )  The  date  when  the  blockade  begins ; 

(2)  The  geographical  limits  of  the  coastline  under  blockade ; 

(3)  The  period  within  which  neutral  vessels  may  come  out. 

Article  10 

If  the  operations  of  the  blockading  Power,  or  of  the  naval  authori- 
ties acting  in  its  name,  do  not  tally  with  the  particulars,  which,  in 
accordance  with  Article  9(1)  and  (2),  must  be  inserted  in  the  declara- 
tion of  blockade,  the  declaration  is  void,  and  a  new  declaration  is  nec- 
essary in  order  to  make  the  blockade  operative. 

Article  11 

A  declaration  of  blockade  is  notified — 

(1)  To  neutral  Powers,  by  the  blockading  Power  by  means  of  a 
communication  addressed  to  the  Governments  direct,  or  to  their  repre- 
sentatives accredited  to  it ; 

(2)  To  the  local  authorities,  by  the  officer  commanding  the  blockad- 
ing force.  The  local  authorities  will,  in  turn,  inform  the  foreign  con- 
sular officers  at  the  port  or  on  the  coastline  under  blockade  as  soon  as 
possible. 

Article  12 

The  rules  as  to  declaration  and  notification  of  blockade  apply  to  cases 
where  the  limits  of  a  blockade  are  extended,  or  where  a  blockade  is 
reestablished  after  having  been  raised. 

Article  13 

The  voluntary  raising  of  a  blockade,  as  also  any  restriction  in  the 
limits  of  a  blockade,  must  be  notified  in  the  manner  prescribed  by 
Article  11. 


116  naval  conference  at  london 

Article  14 

The  liability  of  a  neutral  vessel  to  capture  for  breach  of  blockade  is 
contingent  on  her  knowledge,  actual  or  presumptive,  of  the  blockade. 

Article  15 

Failing  proof  to  the  contrary,  knowledge  of  the  blockade  is  pre- 
sumed if  the  vessel  left  a  neutral  port  subsequently  to  the  notification 
of  the  blockade  to  the  Power  to  which  such  port  belongs,  provided 
that  such  notification  was  made  in  sufficient  time. 

Article  16 

If  a  vessel  approaching  a  blockaded  port  has  no  knowledge,  actual 
or  presumptive,  of  the  blockade,  the  notification  must  be  made  to  the 
vessel  itself  by  an  officer  of  one  of  the  ships  of  the  blockading  force. 
This  notification  should  be  entered  in  the  vessel's  log-book,  and  must 
state  the  day  and  hour,  and  the  geographical  position  of  the  vessel  at 
the  time. 

If,  through  the  negligence  of  the  officer  commanding  the  blockading 
force,  no  declaration  of  blockade  has  been  notified  to  the  local  authori- 
ties, or,  if  in  the  declaration,  as  notified,  no  period  has  been  mentioned 
within  which  neutral  vessels  may  come  out,  a  neutral  vessel  coming  out 
of  the  blockaded  port  must  be  allowed  to  pass  free. 

Article  17 

Neutral  vessels  may  not  be  captured  for  breach  of  blockade  except 
within  the  area  of  operations  of  the  war-ships  detailed  to  render  the 
blockade  effective. 

Article  18 

The  blockading  forces  must  not  bar  access  to  neutral  ports  or  coasts. 

Article  19 

Whatever  may  be  the  ulterior  destination  of  a  vessel  or  of  her  cargo, 
she  can  not  be  captured  for  breach  of  blockade,  if,  at  the  moment,  she 
is  on  her  way  to  a  non-blockaded  port. 

Article  20 

A  vessel  which  has  broken  blockade  outwards,  or  which  has  at- 
tempted to  break  blockade  inwards,  is  liable  to  capture  so  long  as  she 
is  pursued  by  a  ship  of  the  blockading  force.  If  the  pursuit  is  aban- 
doned, or  if  the  blockade  is  raised,  her  capture  can  no  longer  be  effected. 


the  declaration  of  london  117 

Article  21 

A  vessel  found  guilty  of  breach  of  blockade  is  liable  to  condemna- 
tion. The  cargo  is  also  condemned,  unless  it  is  proved  that  at  the  time 
of  the  shipment  of  the  goods  the  shipper  neither  knew  nor  could  have 
known  of  the  intention  to  break  the  blockade. 

Chapter  II — Contraband  of  War 

Article  22 

The  following  articles  may,  without  notice,^  be  treated  as  contraband 
of  war,  under  the  name  of  absolute  contraband : 

(1)  Arms  of  all  kinds,  including  arms  for  sporting  purposes,  and 
their  distinctive  component  parts. 

(2)  Projectiles,  charges,  and  cartridges  of  all  kinds,  and  their  dis- 
tinctive component  parts. 

(3)  Powder  and  explosives  specially  prepared  for  use  in  war. 

(4)  Gun-mountings,  limber  boxes,  limbers,  military  wagons,  field 
forges,  and  their  distinctive  component  parts. 

(5)  Clothing  and  equipment  of  a  distinctively  military  character. 

(6)  All  kinds  of  harness  of  a  distinctively  military  character. 

(7)  Saddle,  draught,  and  pack  animals  suitable  for  use  in  war. 

(8)  Articles  of  camp  equipment,  and  their  distinctive  component 
parts. 

(9)  Armor  plates. 

(10)  War-ships,  including  boats,  and  their  distinctive  component 
parts  of  such  a  nature  that  they  can  only  be  used  on  a  vessel  of  war. 

(11)  Implements  and  apparatus  designed  exclusively  for  the  manu- 
facture of  munitions  of  war,  for  the  manufacture  or  repair  of  arms, 
or  war  material  for  use  on  land  or  sea. 

Article  23 

Articles  exclusively  used  for  war  may  be  added  to  the  list  of  abso- 
lute contraband  by  a  declaration,  which  must  be  notified. 

Such  notification  must  be  addressed  to  the  Governments  of  other 
Powers,  or  to  their  representatives  accredited  to  the  Power  making 
the  declaration.  A  notification  made  after  the  outbreak  of  hostilities 
is  addressed  only  to  neutral  Powers. 


1  In  view  of  the  difficulty  of  finding  an  exact  equivalent  in  English  for  the 
expression  "de  plein  droit,"  it  has  been  decided  to  translate  it  by  the  words 
"without  notice,"  which  represent  the  meaning  attached  to  it  by  the  draftsman 
as  appears  from  the  General  Report   (see  p.  148). 


118  naval  conference  at  london 

Article  24 

The  following  articles,  susceptible  of  use  in  war  as  well  as  for  pur- 
poses of  peace,  may,  without  notice,^  be  treated  as  contraband  of  war, 
under  the  name  of  conditional  contraband: 

(1)  Foodstuffs. 

(2)  Forage  and  grain,  suitable  for  feeding  animals. 

(3)  Clothing,  fabrics  for  clothing,  and  boots  and  shoes,  suitable  for 
use  in  war, 

(4)  Gold  and  silver  in  coin  or  bullion;  paper  money. 

(5)  Vehicles  of  all  kinds  available  for  use  in  war,  and  their  com- 
ponent parts. 

(6)  Vessels,  craft,  and  boats  of  all  kinds;  floating  docks,  parts  of 
docks  and  their  component  parts. 

(7)  Railway  material,  both  fixed  and  rolling-stock,  and  material  for 
telegraphs,  wireless  telegraphs,  and  telephones. 

(8)  Balloons  and  flying  machines  and  their  distinctive  component 
parts,  together  with  accessories  and  articles  recognizable  as  intended 
for  use  in  connection  with  balloons  and  flying  machines. 

(9)  Fuel ;  lubricants. 

(10)  Powder  and  explosives  not  specially  prepared  for  use  in  war. 

(11)  Barbed  wire  and  implements  for  fixing  and  cutting  the  same. 

(12)  Horseshoes  and  shoeing  materials. 

(13)  Harness  and  saddlery. 

(14)  Field  glasses,  telescopes,  chronometers,  and  all  kinds  of  nau- 
tical instruments. 

Article  25 

Articles  susceptible  of  use  in  war  as  well  as  for  purposes  of  peace, 
other  than  those  enumerated  in  Articles  22  and  24,  may  be  added  to 
the  list  of  conditional  contraband  by  a  declaration,  which  must  be 
notified  in  the  manner  provided  for  in  the  second  paragraph  of 
Article  23. 

Article  26 

If  a  Power  waives,  so  far  as  it  is  concerned,  the  right  to  treat  as 
contraband  of  war  an  article  comprised  in  any  of  the  classes  enumer- 
ated in  Articles  22  and  24,  such  intention  shall  be  announced  by  a 
declaration,  which  must  be  notified  in  the  manner  provided  for  in  the 
second  paragraph  of  Article  23. 


1  See  note  on  Article  22. 


the  declaration  of  london  119 

Article  27 

Articles  which  are  not  susceptible  of  use  in  war  may  not  be  declared 
contraband  of  war. 

Article  28 

The  following  may  not  be  declared  contraband  of  war: 
v^      ( 1 )  Raw  cotton^Vgoli'  silk,  jute,  flax,  hemp,  and  other  raw  materials 
of  the  textile  industries,  and  yarns  of  the  same. 

(2)  Oil  seeds  and  nuts ;  copra. 

(3)  Rubber,  resins,  gums,  and  lacs;  hops. 

(4)  Raw  hides  and  horns,  bones  and  ivory. 

(5)  Natural  and  artificial  manures,  including  nitrates  and  phos- 
phates for  agricultural  purposes. 

(6)  Metallic  ores. 

(7)  Earths,  clays,  lime,  chalk,  stone,  including  marble,  bricks,  slates, 
and  tiles. 

(8)  Chinaware  and  glass. 

(9)  Paper  and  paper-making  materials. 

(10)  Soap,  paint  and  colors,  including  articles  exclusively  used  in 
their  manufacture,  and  varnish. 

(11)  Bleaching  powder,  soda  ash,  caustic  soda,  salt  cake,  ammonia, 
sulphate  of  ammonia,  and  sulphate  of  copper, 

(12)  Agricultural,  mining,  textile,  and  printing  machinery. 

(13)  Precious  and  semi-precious  stones,  pearls,  mother-of-pearl, 
and  coral. 

(14)  Clocks  and  watches,  other  than  chronometers. 

(15)  Fashion  and  fancy  goods. 

(16)  Feathers  of  all  kinds,  hairs,  and  bristles. 

(17)  Articles  of  household  furniture  and  decoration  ;  office  furniture 
and  requisites. 

Article  29 

Likewise  the  following  may  not  be  treated  as  contraband  of  war: 

(1)  Articles  serving  exclusively  to  aid  the  sick  and  wounded.  They 
can,  however,  in  case  of  urgent  military  necessity  and  subject  to  the 
payment  of  compensation,  be  requisitioned,  if  their  destination  is  that 
specified  in  Article  30. 

(2)  Articles  intended  for  the  use  of  the  vessel  in  which  Tihey  are 
found,  as  well  as  those  intended  for  the  use  of  her  crew  and  passen- 
gers during  the  voyage. 


120  naval  conference  at  london 

Article  30 

Absolute  contraband  is  liable  to  capture  if  it  is  shown  to  be  des- 
tined to  territory  belonging  to  or  occupied  by  the  enemy,  or  to  the 
armed  forces  of  the  enemy.  It  is  immaterial  whether  the  carriage  of 
the  goods  is  direct  or  entails  transshipment  or  a  subsequent  transport 
by  land. 

Article  31 

Proof  of  the  destination  specified  in  Article  30  is  complete  in  the 
following  cases : 

(1)  When  the  goods  are  documented  for  discharge  in  an  enemy 
port,  or  for  delivery  to  the  armed  forces  of  the  enemy. 

(2)  When  the  vessel  is  to  call  at  enemy  ports  only,  or  when  she  is 
to  touch  at  an  enemy  port  or  meet  the  armed  forces  of  the  enemy 
before  reaching  the  neutral  port  for  which  the  goods  in  question  are 
documented. 

Article  32 

Where  a  vessel  is  carrying  absolute  contraband,  her  papers  are  con- 
clusive proof  as  to  the  voyage  on  which  she  is  engaged,  unless  she  is 
found  clearly  out  of  the  course  indicated  by  her  papers  and  unable  to 
give  adequate  reasons  to  justify  such  deviation 

Article  33 
Conditional  contraband  is  liable  to  capture  if  it  is  shown  to  be  des- 
tined for  the  use  of  the  armed  forces  or  of  a  government  department 
of  the  enemy  State,  unless  in  this  latter  case  the  circumstances  show 
that  the  goods  can  not  in  fact  be  used  for  the  purposes  of  the  war  in 
progress.  This  latter  exception  does  not  apply  to  a  consignment  com- 
ing under  Article  24  (4). 

Article  34 

The  destination  referred  to  in  Article  33  is  presumed  to  exist  if  the 
goods  are  consigned  to  enemy  authorities,  or  to  a  contractor  established 
in  the  enemy  country  who,  as  a  matter  of  common  knowledge,  supplies 
articles  of  this  kind  to  the  enemy.  A  similar  presumption  arises  if  the 
goods  are  consigned  to  a  fortified  place  belonging  to  the  enemy,  or 
other  place  serving  as  a  base  for  the  armed  forces  of  the  enemy.  No 
such  presumption,  however,  arises  in  the  case  of  a  merchant  vessel 
bound  for  one  of  these  places  if  it  is  sought  to  prove  that  she  herself  is 
contraband. 


THE  DECLARATION  OF  LONDON  121 

In  cases  where  the  above  presumptions  do  not  arise,  the  destination 
is  presumed  to  be  innocent. 

The  presumptions  set  up  by  this  article  may  be  rebutted. 

Article  35 

Conditional  contraband  is  not  liable  to  capture,  except  when  found 
on  board  a  vessel  bound  for  territory  belonging  to  or  occupied  by  the 
enemy,  or  for  the  armed  forces  of  the  enemy,  and  when  it  is  not  to  be 
discharged  in  an  intervening  neutral  port. 

The  ship's  papers  are  conclusive  proof  both  as  to  the  voyage  on 
which  the  vessel  is  engaged  and  as  to  the  port  of  discharge  of  the 
goods,  unless  she  is  found  clearly  out  of  the  course  indicated  by  her 
papers,  and  unable  to  give  adequate  reasons  to  justify  such  deviation. 

Article  36 
Notwithstanding  the  provisions  of  Article  35,  conditional  contraband, 
if  shown  to  have  the  destination  referred  to  in  Article  33,  is  liable  to 
capture  in  cases  where  the  enemy  country  has  no  seaboard. 

Article  37 

A  vessel  carrying  goods  liable  to  capture  as  absolute  or  conditional 

contraband  may  be  captured  on  the  high  seas  or  in  the  territorial 

waters  of  the  belligerents  throughout  the  whole  of  her  voyage,  even  if 

she  is  to  touch  at  a  port  of  call  before  reaching  the  hostile  destination. 

Article  38 
A  vessel  may  not  be  captured  on  the  ground  that  she  has  carried 
contraband  on  a  previous  occasion  if  such  carriage  is  in  point  of  fact 
at  an  end. 

Article  39 

Contraband  goods  are  liable  to  condemnation. 

Article  40 
A  vessel  carrying  contraband  may  be  condemned  if  the  contraband, 
reckoned  either  by  value,  weight,  volume,  or  freight,  forms  more  than 
half  the  cargo. 

Article  41 
If  a  vessel  carrying  contraband  is  released,  she  may  be  condemned 
to  pay  the  costs  and  expenses  incurred  by  the  captor  in  respect  of  the 
proceedings  in  the  national  prize  court  and  the  custody  of  the  ship  and 
cargo  during  the  proceedings. 


122  naval  conference  at  london 

Article  42 
Goods  which  belong  to  the  owner  of  the  contraband  and  are  on  board 
the  same  vessel  are  liable  to  condemnation 

Article  43 

If  a  vessel  is  encountered  at  sea  while  unaware  of  the  outbreak  of 
hostilities  or  of  the  declaration  of  contraband  which  applies  to  her 
cargo,  the  contraband  can  not  be  condemned  except  on  payment  of  com- 
pensation; the  vessel  herself  and  the  remainder  of  the  cargo  are  not 
liable  to  condemnation  or  to  the  costs  and  expenses  referred  to  in 
Article  41.  The  same  rule  applies  if  the  master,  after  becoming  aware 
of  the  outbreak  of  hostilities,  or  of  the  declaration  of  contraband,  has 
had  no  opportunity  of  discharging  the  contraband. 

A  vessel  is  deemed  to  be  aware  of  the  existence  of  a  state  of  war, 
or  of  a  declaration  of  contraband,  if  she  left  a  neutral  port  subse- 
quently to  the  notification  to  the  Power  to  which  such  port  belongs  of 
the  outbreak  of  hostilities  or  of  the  declaration  of  contraband  respec- 
tively, provided  that  such  notification  was  made  in  sufficient  time.  A 
vessel  is  also  deemed  to  be  aware  of  the  existence  of  a  state  of  war  if 
she  left  an  enemy  port  after  the  outbreak  of  hostilities. 

Article  44 

A  vessel  which  has  been  stopped  on  the  ground  that  she  is  carrying 
contraband,  and  which  is  not  liable  to  condemnation  on  account  of  the 
proportion  of  contraband  on  board,  may,  when  the  circumstances  per- 
mit, be  allowed  to  continue  her  voyage  if  the  master  is  willing  to  hand 
over  the  contraband  to  the  belligerent  war-ship. 

The  delivery  of  the  contraband  must  be  entered  by  the  captor  on  the 
log-book  of  the  vessel  stopped  and  the  master  must  give  the  captor  duly 
certified  copies  of  all  relevant  papers. 

The  captor  is  at  liberty  to  destroy  the  contraband  that  lias  been 
handed  over  to  him  under  these  conditions. 

Chapter  III — Unneutral  Service 

Article  45 

A  neutral  vessel  will  be  condemned  and  will,  in  a  general  way,  receive 
the  same  treatment  as  a  neutral  vessel  liable  to  condemnation  for  car- 
riage of  contraband : 


THE   DECLARATION    OF   LONDON  123 

(1)  If  she  is  on  a  voyage  specially  undertaken  with  a  view  to  the 
transport  of  individual  passengers  who  are  embodied  in  the  armed 
forces  of  the  enemy,  or  with  a  view  to  the  transmission  of  intelligence 
in  the  interest  of  the  enemy. 

(2)  If,  to  the  knowledge  of  either  the  owner,  the  charterer,  or  the 
master,  she  is  transporting  a  military  detachment  of  the  enemy,  or 
one  or  more  persons  who,  in  the  course  of  the  voyage,  directly  assist 
the  operations  of  the  enemy. 

In  the  cases  specified  under  the  above  heads,  goods  belonging  to  the 
owner  of  the  vessel  are  likewise  liable  to  condemnation. 

The  provisions  of  the  present  article  do  not  apply  if  the  vessel  is 
encountered  at  sea  while  unaware  of  the  outbreak  of  hostilities,  or  if 
the  master,  after  becoming  aware  of  the  outbreak  of  hostilities,  has 
had  no  opportunity  of  disembarking  the  passengers.  The  vessel  is 
deemed  to  be  aware  of  the  existence  of  a  state  of  war  if  she  left  an 
enemy  port  subsequently  to  the  outbreak  of  hostilities,  or  a  neutral 
port  subsequently  to  the  notification  of  the  outbreak  of  hostilities  to 
the  Power  to  which  such  port  belongs,  provided  that  such  notification 
was  made  in  sufficient  time. 

Article  46 

A  neutral  vessel  will  be  condemned  and,  in  a  general  way,  receive 
the  same  treatment  as  would  be  applicable  to  her  if  she  were  an  enemy 
merchant  vessel: 

(1)  If  she  takes  a  direct  part  in  the  hostilities; 

(2)  If  she  is  under  the  orders  or  control  of  an  agent  placed  on 
board  by  the  enemy  Government ; 

(3)  If  she  is  in  the  exclusive  employment  of  the  enemy  Govern- 
ment; 

(4)  If  she  is  exclusively  engaged  at  the  time  either  in  the  transport 
of  enemy  troops  or  in  the  transmission  of  intelligence  in  the  interest 
of  the  enemy. 

In  the  cases  covered  by  the  present  article,  goods  belonging  to  the 
owner  of  the  vessel  are  likewise  liable  to  condemnation. 

Article  47 

Any  individual  embodied  in  the  armed  forces  of  the  enemy  who  is 
found  on  board  a  neutral  merchant  vessel,  may  be  made  a  prisoner  of 
war,  even  though  there  be  no  ground  for  the  capture  of  the  vessel. 


124  NAVAL  CONFERENCE  AT  LONDON 

Chapter  IV — Destruction  of  Neutral  Prizes 
Article  48 
A  neutral  vessel  which  has  been  captured  may  not  be  destroyed  by 
the  captor ;  she  must  be  taken  into  such  port  as  is  proper  for  the  deter- 
mination there  of  all  questions  concerning  the  validity  of  the  capture. 

Article  49 

As  an  exception,  a  neutral  vessel  which  has  been  captured  by  a  bel- 
Hgerent  war-ship,  and  which  would  be  liable  to  condemnation,  may  be 
destroyed  if  the  observance  of  Article  48  would  involve  danger  to  the 
safety  of  the  war-ship  or  to  the  success  of  the  operations  in  which  she 
is  engaged  at  the  time. 

Article  50 

Before  the  vessel  is  destroyed  all  persons  on  board  must  be  placed 
in  safety,  and  all  the  ship's  papers  and  other  documents  which  the 
parties  interested  consider  relevant  for  the  purpose  of  deciding  on  the 
validity  of  the  capture  must  be  taken  on  board  the  war-ship. 

Article  51 

A  captor  who  has  destroyed  a  neutral  vessel  must,  prior  to  any  de- 
cision respecting  the  validity  of  the  prize,  establish  that  he  only  acted 
in  the  face  of  an  exceptional  necessity  of  the  nature  contemplated  in 
Article  49.  If  he  fails  to  do  this,  he  must  compensate  the  parties  in- 
terested and  no  examination  shall  be  made  of  the  question  whether  the 
capture  was  valid  or  not. 

Article  52 

If  the  capture  of  a  neutral  vessel  is  subsequently  held  to  be  invalid, 
though  the  act  of  destruction  has  been  held  to  have  been  justifiable, 
the  captor  must  pay  compensation  to  the  parties  interested,  in  place  of 
the  restitution  to  which  they  would  have  been  entitled. 

Article  53 

If  neutral  goods  not  liable  to  condemnation  have  been  destroyed  with 
the  vessel,  the  owner  of  such  goods  is  entitled  to  compensation. 

Article  54 

The  captor  has  the  right  to  demand  the  handing  over,  or  to  proceed 
himself  to  the  destruction  of,  any  goods  liable  to  condemnation  found 


THE  DECLARATION  OF  LONDON  125 

on  board  a  vessel  not  herself  liable  to  condemnation,  provided  that  the 
circumstances  are  such  as  would,  under  Article  49,  justify  the  destruc- 
tion of  a  vessel  herself  liable  to  condemnation.  The  captor  must  enter 
the  goods  surrendered  or  destroyed  in  the  log-book  of  the  vessel 
stopped,  and  must  obtain  duly  certified  copies  of  all  relevant  papers. 
When  the  goods  have  been  handed  over  or  destroyed,  and  the  formali- 
ties duly  carried  out,  the  master  must  be  allowed  to  continue  his 
voyage. 

The  provisions  of  Articles  51  and  52  respecting  the  obligations  of  a 
captor  who  has  destroyed  a  neutral  vessel  are  applicable. 

Chapter  V — Transfer  to  a  Neutral  Flag 
Article  55 

The  transfer  of  an  enemy  vessel  to  a  neutral  flag,  effected  before  the 
outbreak  of  hostilities,  is  valid,  unless  it  is  proved  that  such  transfer 
was  made  in  order  to  evade  the  consequences  to  which  an  enemy  vessel, 
as  such,  is  exposed.  There  is,  however,  a  presumption,  if  the  bill  of 
sale  is  not  on  board  a  vessel  which  has  lost  her  belligerent  nationality 
less  than  sixty  days  before  the  outbreak  of  hostilities,  that  the  transfer 
is  void.     This  presumption  may  be  rebutted. 

Where  the  transfer  was  effected  more  than  thirty  days  before  the 
outbreak  of  hostilities,  there  is  an  absolute  presumption  that  it  is  valid 
if  it  is  unconditional,  complete,  and  in  conformity  with  the  laws  of  the 
countries  concerned,  and  if  its  effect  is  such  that  neither  the  control  of, 
nor  the  profits  arising  from  the  employment  of,  the  vessel  remain  in 
the  same  hands  as  before  the  transfer.  If,  however,  the  vessel  lost  her 
belligerent  nationality  less  than  sixty  days  before  the  outbreak  of  hos- 
tilities and  if  the  bill  of  sale  is  not  on  board,  the  capture  of  the  vessel 
gives  no  right  to  damages. 

Article  56 

The  transfer  of  an  enemy  vessel  to  a  neutral  flag  effected  after  the 
outbreak  of  hostilities,  is  void  unless  it  is  proved  that  such  transfer 
was  not  made  in  order  to  evade  the  consequences  to  which  an  enemy 
vessel,  as  such,  is  exposed. 

There,  however,  is  an  absolute  presumption  that  a  transfer  is  void: 
(1)   If  the  transfer  has  been  made  during  a  voyage  or  in  a  block- 
aded port. 


126  NAVAL  CONFERENCE  AT  LONDON 

(2)  If  a  right  to  repurchase  or  recover  the  vessel  is  reserved  to  the 
vendor. 

(3)  If  the  requirements  of  the  municipal  law  governing  the  right 
to  fly  the  flag  under  vidiich  the  vessel  is  sailing,  have  not  been  fulfilled. 

Chapter  VI — Enemy  Character 
Article  57 

Subject  to  the  provisions  respecting  transfer  to  another  flag,  the 
neutral  or  enemy  character  of  a  vessel  is  determined  by  the  flag  which 
she  is  entitled  to  fly. 

The  case  where  a  neutral  vessel  is  engaged  in  a  trade  which  is  closed 
in  time  of  peace,  remains  outside  the  scope  of,  and  is  in  no  wise  affected 
by,  this  rule. 

Article  58 

The  neutral  or  enemy  character  of  goods  found  on  board  an  enemy 
vessel  is  determined  by  the  neutral  or  enemy  character  of  the  owner. 

Article  59 

In  the  absence  of  proof  of  the  neutral  character  of  goods  found  on 
board  an  enemy  vessel,  they  are  presumed  to  be  enemy  goods. 

Article  60 

Enemy  goods  on  board  an  enemy  vessel  retain  their  enemy  character 
until  they  reach  their  destination,  notwithstanding  any  transfer  effected 
after  the  outbreak  of  hostiHties  while  the  goods  are  being  forwarded. 

If,  however,  prior  to  the  capture,  a  former  neutral  owner  exercises, 
on  the  bankruptcy  of  an  existing  enemy  owner,  a  recognized  legal  right 
to  recover  the  goods,  they  regain  their  neutral  character. 

Chapter  VII — Convoy 

Article  61 

Neutral  vessels  under  national  convoy  are  exempt  from  search.  The 
commander  of  a  convoy  gives,  in  writing,  at  the  request  of  the  com- 
mander of  a  belligerent  war-ship,  all  information  as  to  the  character 
of  the  vessels  and  their  cargoes,  which  could  be  obtained  by  search. 


the  dfxlaration  of  london  127 

Article  62 

If  the  commander  of  the  belHgeient  war-ship  has  reason  to  suspect 
that  the  confidence  of  the  commander  of  the  convoy  has  been  abused, 
he  communicates  his  suspicions  to  him.  In  such  a  case  it  is  for  the 
commander  of  the  convoy  alone  to  investigate  the  matter.  Pie  must 
record  the  result  of  such  investigation  in  a  report,  of  which  a  copy 
is  handed  to  the  officer  of  the  war-ship.  If,  in  the  opinion  of  the  com- 
mander of  the  convoy,  the  facts  shown  in  the  report  justify  the  capture 
of  one  or  more  vessels,  the  protection  of  the  convoy  must  be  with- 
drawn from  such  vessels. 

Chapter  VIII — Resistance  to  Search 

Article  63 

Forcible  resistance  to  the  legitimate  exercise  of  the  right  of  stoppage, 
search,  and  capture,  involves  in  all  cases  the  condemnation  of  the  ves- 
sel. The  cargo  is  liable  to  the  same  treatment  as  the  cargo  of  an 
enemy  vessel.  Goods  belonging  to  the  master  or  owner  of  the  vessel 
are  treated  as  enemy  goods. 

Chapter  IX — Compensation 

Article  64 

If  the  capture  of  a  vessel  or  of  goods  is  not  upheld  by  the  prize 
court,  or  if  the  prize  is  released  without  any  judgment  being  given,  the 
parties  interested  have  the  right  to  compensation,  unless  there  were 
good  reasons  for  capturing  the  vessel  or  goods. 

Final  Provisions 

Article  65 

The  provisions  of  the  present  Declaration  must  be  treated  as  a 
whole,  and  can  not  be  separated. 

Article  66 

The  signatory  Powers  undertake  to  insure  the  mutual  observance  of 
the  rules  contained  in  the  present  Declaration  in  any  war  in  which  all 
the  belligerents  are  parties  thereto.  They  will  therefore  issue  the  nec- 
essary instructions  to  their  authorities  and  to  their  armed  forces,  and 


128  NAVAL  CONFERENCE  AT  LONDON 

will  take  such  measures  as  may  be  required  in  order  to  insure  that  it 
will  be  appHed  by  their  courts,  and  more  particularly  by  their  prize 
courts. 

Article  67 

The  present  Declaration  shall  be  ratified  as  soon  as  possible. 

The  ratifications  shall  be  deposited  in  London. 

The  first  deposit  of  ratifications  shall  be  recorded  in  a  protocol  signed 
by  the  representatives  of  the  Powers  taking  part  therein,  and  by  His 
Britannic  Majesty's  Principal  Secretary  of  State  for  Foreign  Affairs. 

The  subsequent  deposits  of  ratifications  shall  be  made  by  means  of 
a  written  notification  addressed  to  the  British  Government,  and  accom- 
panied by  the  instrument  of  ratification. 

A  duly  certified  copy  of  the  protocol  relating  to  the  first  deposit  of 
ratifications,  and  of  the  notifications  mentioned  in  the  preceding  para- 
graph as  well  as  of  the  instruments  of  ratification  which  accompany 
them,  shall  be  immediately  sent  by  the  British  Government,  through 
the  diplomatic  channel,  to  the  signatory  Powers.  The  said  Govern- 
ment shall,  in  the  cases  contemplated  in  the  preceding  paragraph,  in- 
form them  at  the  same  time  of  the  date  on  which  it  received  the 
notification. 

Article  68 

The  present  Declaration  shall  take  effect,  in  the  case  of  the  Powers 
which  were  parties  to  the  first  deposit  of  ratifications,  sixty  days  after 
the  date  of  the  protocol  recording  such  deposit,  and,  in  the  case  of  the 
Powers  which  shall  ratify  subsequently,  sixty  days  after  the  notification 
of  their  ratification  shall  have  been  received  by  the  British  Government. 

Article  69 

In  the  event  of  one  of  the  signatory  Powers  wishing  to  denounce 
the  present  Declaration,  such  denunciation  can  only  be  made  to  take 
effect  at  the  end  of  a  period  of  twelve  years,  beginning  sixty  days 
after  the  first  deposit  of  ratifications,  and,  after  that  time,  at  the  end 
of  successive  periods  of  six  years,  of  which  the  first  will  begin  at  the 
end  of  the  period  of  twelve  years. 

Such  denunciation  must  be  notified  in  writing,  at  least  one  year  in 
advance,  to  the  British  Government,  which  shall  inform  all  the  other 
Powers. 

It  will  only  operate  in  respect  of  the  denouncing  Power. 


the  declaration  of  london  129 

Article  70 

The  Powers  represented  at  the  London  Naval  Conference  attach 
particular  importance  to  the  general  recognition  of  the  rules  which 
they  have  adopted,  and  therefore  express  the  hope  that  the  Powers 
which  were  not  represented  there  will  accede  to  the  present  Declara- 
tion.    They  request  the  British  Government  to  invite  them  to  do  so. 

A  Power  which  desires  to  accede  shall  notify  its  intention  in  writing 
to  the  British  Government,  and  transmit  simultaneously  the  act  of 
accession,  which  will  be  deposited  in  the  archives  of  the  said 
Government. 

The  said  Government  shall  forthwith  transmit  to  all  the  other 
Powers  a  duly  certified  copy  of  the  notification,  together  with  the  act 
of  accession,  and  communicate  the  date  on  which  such  notification  was 
received.    The  accession  takes  effect  sixty  days  after  such  date. 

In  respect  of  all  matters  concerning  this  Declaration,  acceding 
Powers  shall  be  on  the  same  footing  as  the  signatory  Powers. 

Article  71 

The  present  Declaration,  which  bears  the  date  of  the  26th  February, 
1909,  may  be  signed  in  London  up  till  the  30th  June,  1909,  by  the 
plenipotentiaries  of  the  Powers  represented  at  the  Naval  Conference. 

In  faith  whereof  the  plenipotentiaries  have  signed  the  present  Dec- 
laration, and  have  thereto  affixed  their  seals. 

Done  at  London,  the  twenty-sixth  day  of  February,  one  thousand 
nine  hundred  and  nine,  in  a  single  original,  which  shall  remain  deposited 
in  the  archives  of  the  British  Government,  and  of  which  duly  certified 
copies  shall  be  sent  through  the  diplomatic  channel  to  the  Powers 
represented  at  the  Naval  Conference. 

[Here  follow  the  signatures.^] 


iThe  following  States  appended  their  signatures  prior  to  March  20,  1909: 
Germany,  United  States  of  America,  Austria-Hungary,  France,  Great  Britain 
and  the  Netherlands.  Subsequent  signatories  are:  Spain,  Italy,  Russia  and 
Japan. 


General  Report  Presented  to  the  Naval  Conference  on  Behalf  of  its 
Drafting  Committee^ 

[Translation^] 

On  the  27th  February,  1908,  the  British  Government  addressed  a 
circular  to  various  Powers  inviting  them  to  meet  at  a  conference  with 
the  object  of  reaching  an  agreement  as  to  the  definition  of  the  gener- 
ally recognized  principles  of  international  law  in  the  sense  of  Article 
7,  paragraph  2,  of  the  Convention  signed  at  The  Hague  on  the  18th 
October,  1907,  for  the  establishment  of  an  International  Prize  Court. 
This  agreement  appeared  necessary  to  the  British  Government  on 
account  of  certain  divergences  of  view  Avhich  had  become  apparent 
at  the  Second  Peace  Conference  in  connection  with  the  settlement  of 
various  important  questions  of  international  maritime  law  in  time  of 
war.  The  existence  of  these  divergent  views  might,  it  seemed,  render 
difficult  the  acceptance  of  the  International  Prize  Court,  as  the  power 
of  this  court  would  be  the  more  extended  in  proportion  as  the  rules 
to  be  applied  by  it  were  more  uncertain. 

The  British  Government  suggested  that  the  following  questions 
might  form  the  program  of  the  proposed  conference,  and  invited  the 
Powers  to  express  their  views  regarding  them  in  preparatory  memo- 
randa : 

(a)  Contraband,  including  the  circumstances  under  which  par- 
ticular articles  can  be  considered  as  contraband ;  the  penalties  for 
their  carriage ;  the  immunity  of  a  ship  from  search  when  under 
convoy ;  and  the  rules  with  regard  to  compensation  where  vessels 
have  been  seized,  but  have  been  found  in  fact  only  to  be  carrying 
innocent  cargo. 

(b)  Blockade,  including  the  questions  as  to  the  locality  where 
seizure  can  be  effected,  and  the  notice  that  is  necessary  before  a 
ship  can  be  seized. 

(c)  The  doctrine  of  continuous  voyage  in  respect  both  of  con- 
traband and  of  blockade. 

(d)  The  legality  of  the  destruction  of  neutral  vessels  prior  to 
their  condemnation  by  a  prize  court. 


^  This  committee  consists  of  Messrs.  Kriege  (Germany),  Wilson  (United 
States  of  America),  Dumba  (Austria-Hungary),  Estrada  (Spain),  Renault 
(France),  Reporter,  Hurst  (Great  Britain),  Ricci-Busatti  (Italy),  Sakamoto 
(Japan),  Ruyssenaers  (Netherlands),  Baron  Taube  (Russia). 

2  For  the  original  French  text  of  the  report  see  British  Parliamentary  Paper, 
Miscellaneous,  No.  5  (1909),  p.  344.    [Cd.  4555.] 


GENERAL  REPORT  TO  THE  CONFERENCE  131 

(e)  The  rules  as  to  neutral  ships  or  persons  rendering  "unneu- 
tral service''  (assistance  hostile). 

(/)  The  legality  of  the  conversion  of  a  merchant  vessel  into  a 
war-ship  on  the  high  seas. 

(g)  The  rules  as  to  the  transfer  of  merchant  vessels  from  a 
belHgerent  to  a  neutral  flag  during  or  in  contemplation  of  hos- 
tilities. 

(h)  The  question  whether  the  nationality  or  the  domicile  of 
the  owner  should  be  adopted  as  the  dominant  factor  in  deciding 
whether  property  is  enemy  property. 

The  invitations  were  accepted,  and  the  Conference  met  on  the  4th 
December  last.  The  British  Government  had  been  so  good  as  to 
assist  its  deliberations  by  presenting  a  collection  of  papers  which 
quickly  became  known  among  us  by  the  name  of  The  Red  Book,  and 
which,  after  a  short  introduction,  contains  a  "statement  of  the  views 
expressed  by  the  Powers  in  their  memoranda,  and  observations  intended 
to  serve  as  a  basis  for  the  deliberations  of  the  Conference."  These 
are  the  "bases  of  discussion"  which  served  as  a  starting  point  for  the 
examination  of  the  chief  questions  of  existing  international  maritime 
law.  The  Conference  could  not  but  express  its  gratitude  for  this 
valuable  preparatory  work,  which  was  of  great  assistance  to  it.  It 
made  it  possible  to  observe,  in  the  first  place,  that  the  divergences  in 
the  practices  and  doctrines  of  the  different  countries  were  perhaps 
less  wide  than  was  generally  believed,  that  the  essential  ideas  were 
often  the  same  in  all  countries,  and  that  the  methods  of  application 
alone  varied  with  traditions  or  prejudices,  with  permanent  or  acci- 
dental interests.  It  was  therefore  possible  to  extract  a  common  ele- 
ment which  it  could  be  agreed  to  recommend  for  uniform  application. 
This  is  the  end  to  which  the  efforts  of  the  different  delegations  tended, 
and  they  vied  with  one  another  in  their  zeal  in  the  search  for  the 
grounds  of  a  common  understanding.  Their  efforts  were  strenuous, 
as  is  shown  by  the  prolonged  discussions  of  the  Conference,  the  grand 
committee,  and  the  examining  committees,  and  by  the  numerous  pro- 
posals which  were  presented.  Sailors,  diplomatists,  and  jurists  cor- 
dially cooperated  in  a  work  the  description  of  which,  rather  than  a 
final  estimate  of  its  essential  value,  is  the  object  of  this  report,  as 
our  impartiality  might  naturally  be  suspected. 

The  body  of  rules  contained  in  the  Declaration,  which  is  the  result 
of  the  deliberations  of  the  Naval  Conference,  and  which  is  to  be  entitled 
"Declaration  concerning   the   laws   of   maritime   war,"   answers   well 


132  NAVAL  CONFERENCE  AT  LONDON 

to  the  desire  expressed  by  the  British  Government  in  its  invitation 
of  February,  1908.  The  questions  in  the  program  are  all  settled 
except  two,  with  regard  to  which  explanations  will  be  given  later. 
The  solutions  have  been  extracted  from  the  various  views  or  practices 
which  prevail  and  represent  what  may  be  called  the  media  sententia. 
They  are  not  always  in  absolute  agreement  with  the  views  peculiar  to 
each  country,  but  they  shock  the  essential  ideas  of  none.  They  must 
not  be  examined  separately,  but  as  a  whole;  otherwise  there  is  a  risk 
of  the  most  serious  misunderstandings.  In  fact,  if  one  or  more  isolated 
rules  are  examined  either  from  the  belligerent  or  the  neutral  point 
of  view,  the  reader  may  find  that  the  interests  with  which  he  is 
especially  concerned  are  jeopardized  by  the  adoption  of  these  rules. 
But  they  have  another  side.  The  work  is  one  of  compromise  and 
mutual  concessions.     Is  it,  as  a  whole,  a  good  one? 

We  confidently  hope  that  those  who  study  it  seriously  will  answer 
that  it  is.  The  Declaration  puts  uniformity  and  certainty  in  the  place 
of  the  diversity  and  obscurity  from  which  international  relations  have 
too  long  suffered.  The  Conference  has  tried  to  reconcile  in  an  equi- 
table and  practical  way  the  rights  of  belligerents  with  those  of  neutral 
commerce;  it  consists  of  Powers  whose  conditions,  from  the  political, 
economic,  and  geographical  points  of  view,  vary  considerably.  There 
is  therefore  reason  to  suppose  that  the  rules  on  which  these  Powers 
have  agreed  take  sufficient  account  of  the  different  interests  involved, 
and  hence  may  be  accepted  without  objection  by  all  the  others. 

The  preamble  of  the  Declaration  summarizes  the  general  ideas  just 
set  forth. 

Having  regard  to  the  terms  in  which  the  British  Government  invited  various 
Powers  to  meet  in  conference  in  order  to  arrive  at  an  agreement  as  to  what  are 
the  generally  recognized  rules  of  international  law  within  the  meaning  of  Article 
7  of  the  Convention  of  the  18th  October,  1907,  relative  to  the  establishment  of 
an  International  Prize  Court. 

Recognizing  all  the  advantages  which  an  agreement  as  to  the  said  rules  would 
present  in  the  unfortunate  event  of  a  naval  war,  both  as  regards  peaceful  com- 
merce, and  as  regards  the  belligerents  and  their  diplomatic  relations  with  neutral 
Governments. 

Having  regard  to  the  divergence  often  found  in  the  methods  by  which  it  is 
sought  to  apply  in  practice  the  general  principles  of  international  law. 

Animated  by  the  desire  to  insure  henceforward  a  greater  measure  of  uni- 
formity in  this  respect. 

Hoping  that  a  work  so  important  to  the  common  welfare  will  meet  with 
general  approval. 


GENERAL  REPORT  TO   THE   CONFERENCE  133 

What  is  the  scope  of  application  of  the  rules  thus  laid  down?  They 
must  be  observed  in  the  relations  between  the  signatory  parties,  since 
those  parties  acknowledge  them  as  principles  of  recognized  inter- 
national law  and,  besides,  expressly  bind  themselves  to  secure  the  bene- 
fit of  them  for  one  another.  The  signatory  Powers  who  are  or  will  be 
parties  to  the  Convention  establishing  the  International  Prize  Court 
will  have,  besides,  an  opportunity  of  having  these  rules  applied  to 
disputes  in  which  they  are  concerned,  whether  the  court  regards  them 
as  generally  recognized  rules,  or  takes  account  of  the  pledge  given  to 
observe  them.  It  is  moreover  to  be  hoped  that  these  rules  will  before 
long  be  accepted  by  the  majority  of  States,  who  will  recognize  the 
advantage  of  substituting  exact  provisions  for  more  or  less  indefinite 
usages  which  tend  to  give  rise  to  controversy. 

It  has  been  said  above  that  two  points  in  the  program  of  the  Con- 
ference were  not  decided. 

1.  The  program  mentions  under  head  (/)  :  The  legality  of  the 
conversion  of  a  merchant  vessel  into  a  war  ship  on  the  high  seas.  The 
conflicting  views  on  this  subject  which  became  apparent  at  the  Con- 
ference of  The  Hague  in  1907,  have  recurred  at  the  present  Confer- 
ence, It  may  be  concluded,  both  from  the  statements  in  the  mem- 
oranda and  from  the  discussion,  that  there  is  no  generally  accepted 
rule  on  this  point,  nor  do  there  appear  to  be  any  precedents  which 
can  be  adduced.  Though  the  two  opposite  opinions  were  defended 
with  great  warmth,  a  lively  desire  for  an  understanding  was  expressed 
on  all  sides ;  everybody  was  at  least  agreed  that  it  would  be  a  great 
advantage  to  put  an  end  to  uncertainty.  Serious  efforts  were  made 
to  do  justice  to  the  interests  espoused  bv  both  sides,  but  these  unfor- 
tunately failed.  A  subsidiary  question  dependent  on  the  previous  one, 
on  which,  at  one  moment  it  appeared  possible  to  come  to  an  agreement, 
is  that  of  reconversion.  According  to  one  proposal  it  was  to  be  laid 
down  that  "merchant  vessels  converted  into  war-ships  can  not  be 
reconverted  into  merchant  vessels  during  the  whole  course  of  the  war." 
The  rule  was  absolute  and  made  no  distinction  as  regards  the  place 
where  reconversion  could  be  effected ;  it  was  dictated  by  the  idea 
that  such  conversion  would  always  have  disadvantages,  would  be  pro- 
ductive of  surprises,  and  lead  to  actual  frauds.  As  unanimity  in  favor 
of  this  proposal  was  not  forthcoming,  a  subsidiary  one  was  brought 
forward,  vis.,  "The  conversion  of  a  war-ship  into  a  merchant  vessel 
on  the  high  seas  is  forbidden  during  the  war."     The  case  had  in  view 


134  NAVAL  CONFERENCE  AT  LONDON 

was  that  of  a  war-ship  (generally  a  recently  converted  merchant 
vessel)  doffing  its  character  so  as  to  be  able  freely  to  revictual  or  refit 
in  a  neutral  port  without  being  bound  by  the  restrictions  imposed  on 
war-ships.  Will  not  the  position  of  the  neutral  State  between  two 
belligerents  be  delicate,  and  will  not  such  State  expose  itself  to  reproach 
whether  it  treats  the  newly  converted  ship  as  a  merchant  vessel  or  as  a 
war-ship?  Agreement  might  perhaps  have  been  reached  on  this  pro- 
posal, but  it  seemed  very  difficult  to  deal  with  this  secondary  aspect 
of  a  question  which  there  was  no  hope  of  settling  as  a  whole.  This 
was  the  decisive  reason  for  the  rejection  of  all  proposals. 

The  question  of  conversion  on  the  high  seas  and  that  of  reconver- 
sion therefore  remain  open, 

2.  Under  head  (h)  the  British  program  mentions  the  question 
whether  the  nationality  or  the  domicile  of  the  owner  should  be  adopted 
as  the  dominant  factor  in  deciding  whether  property  is  enemy  property. 
This  question  was  subjected  to  a  searching  examination  by  a  special 
committee,  which  had  to  acknowledge  the  uncertainty  of  actual  prac- 
tice ;  it  was  proposed  to  put  an  end  to  this  by  the  following  provisions : 

The  neutral  or  enemy  character  of  goods  found  on  board  an 
enemy  vessel  is  determined  by  the  neutral  or  enemy  nationality 
of  their  owner,  or,  if  he  is  of  no  nationality  or  of  double  nation- 
ality (i.  e.,  both  neutral  and  enemy),  by  his  domicile  in  a  neutral 
or  enemy  country;  provided  that  goods  belonging  to  a  limited 
liability  or  joint  stock  company  are  considered  as  neutral  or  enemy 
according  as  the  company  has  its  headquarters  in  a  neutral 
country. 

Unanimity  not  being  forthcoming,  these  provisions  remained  with- 
out effect. 

We  now  reach  the  explanation  of  the  Declaration  itself,  on  which 
we  shall  try,  by  summarizing  the  reports  already  approved  by  the 
Conference,  to  give  an  exact  and  uncontroversial  commentary ;  this, 
when  it  has  become  an  official  commentary  by  receiving  the  approval 
of  the  Conference,  may  serve  as  a  guide  to  the  different  authorities — 
administrative,  military,  and  judicial — who  may  be  called  on  to 
apply  it. 

Preliminary  Provision 

The  signatory  Powers  are  agreed  that  the  rules  contained  in  tlie  following 
chapters  correspond  in  substance  with  the  generally  recognized  principles  of 
international  law. 


GENERAL  REPORT  TO   THE   CONFERENCE  135 

This  provision  dominates  all  the  rules  which  follow.  Its  spirit  has 
been  indicated  in  the  general  remarks  to  be  found  at  the  beginning 
of  this  report.  The  purpose  of  the  Conference  has,  above  all,  been  to 
note,  to  define,  and,  where  needful,  to  complete  what  might  be  con- 
sidered as  customary  law. 

Chapter  I — Blockade  in  Time  of  War 

Blockade  is  here  regarded  solely  as  an  operation  of  war,  and  there 
is  no  intention  of  touching  in  any  way  on  what  is  called  "pacific" 
blockade. 

Article  1.  A  blockade  must  not  extend  beyond  the  ports  and  coasts  belong- 
ing to  or  occupied  by  the  enemy. 

Blockade,  as  an  operation  of  war,  can  be  directed  by  a  belligerent 
only  against  his  adversary.  This  very  simple  rule  is  laid  down  at 
the  start,  but  its  full  scope  is  apparent  only  when  it  is  read  in  con- 
nection with  Article  18. 

Article  2.  In  accordance  with  the  Declaration  of  Paris  of  1856,  a  blockade,  in 
order  to  be  binding,  must  be  effective— that  is  to  say,  it  must  be  maintained  by 
a  force  sufficient  really  to  prevent  access  to  the  enemy  coastline. 

The  first  condition  necessary  to  render  a  blockade  binding  is  that 
it  should  be  effective.  There  has  been  universal  agreement  on  this 
subject  for  a  long  time.  As  for  the  definition  of  an  effective  blockade, 
we  thought  that  we  had  only  to  adopt  the  one  to  be  found  in  the  Dec- 
laration of  Paris  of  the  16th  April,  1856,  which,  conventionally,  binds 
a  great  number  of  States,  and  is  in  fact  accepted  by  the  rest. 

Article  3.    The  question  whether  a  blockade  is  effective  is  a  question  of  fact. 

It  is  easily  to  be  understood  that  difficulties  often  arise  on  the  ques- 
tion whether  a  blockade  is  etfective  or  not;  opposing  interests  are 
at  stake.  The  blockading  belligerent  wishes  to  economize  his  efforts, 
and  neutrals  desire  their  trade  to  be  as  little  hampered  as  possible. 
Diplomatic  protests  have  sometimes  been  made  on  this  subject.  The 
point  may  be  a  delicate  one,  because  no  absolute  rule  can  be  laid  down 
as  to  the  number  and  position  of  the  blockading  ships.  All  depends 
on  matters  of  fact  and  geographical  conditions.  In  one  case  a  single 
ship  will  suffice  to  blockade  a  port  as  effectively  as  possible,  whereas 
in  another  a  whole  fleet  may  not  be  enough  really  to  prevent  access 
to  one  or  more  ports  declared  to  be  blockaded.     It  is  therefore  essen- 


136  NAVAL  CONFERENCE  AT  LONDON' 

tially  a  question  of  fact,  to  be  decided  on  the  merits  of  each  case, 
and  not  according  to  a  formula  drawn  up  beforehand.  Who  shall 
decide  it?  The  judicial  authority.  This  will  be,  in  the  first  place, 
the  national  tribunal  which  is  called  on  to  pronounce  as  to  the  validity 
of  the  prize  and  which  the  vessel  captured  for  breach  of  blockade  can 
ask  to  declare  the  capture  void,  because  the  blockade,  not  being  effec- 
tive, was  not  binding.  This  resort  has  always  existed;  it  may  not 
always  have  given  satisfaction  to  tiie  Powers  concerned,  because  they 
may  have  thought  that  the  national  tribunal  was  rather  naturally  led 
to  consider  effective  the  blockade  declared  to  be  so  by  its  Government. 
But  when  the  International  Prize  Court  Convention  comes  into  force 
there  will  be  an  absolutely  impartial  tribunal,  to  which  neutrals  may 
apply,  and  which  will  decide  whether,  in  a  given  case,  the  blockade 
was  effective  or  not.  The  possibility  of  this  resort,  besides  allowing 
certain  injustices  to  be  redressed,  will  most  likely  have  a  preventive 
effect,  in  that  a  Government  will  take  care  to  establish  its  blockades 
in  such  a  way  that  their  effect  can  not  be  annulled  by  decisions  which 
would  inflict  on  it  a  heavy  loss.  The  full  scope  of  Article  3  is  thus 
seen  when  it  is  understood  that  the  question  with  which  it  deals  must 
be  settled  by  a  court.  The  foregoing  explanation  is  inserted  in  the 
report  at  the  request  of  the  committee,  in  order  to  remove  all  possibility 
of  misunderstanding. 

Article  4.  A  blockade  is  not  regarded  as  raised  if  the  blockading  force  is 
temporarily  withdrawn  on  account  of  stress  of  weather. 

It  is  not  enough  for  a  blockade  to  be  established ;  it  must  be  main- 
tained. If  it  is  raised  it  may  be  reestablished,  but  this  requires  the 
observance  of  the  same  formalities  as  though  it  were  established  for 
the  first  time.  By  tradition,  a  blockade  is  not  regarded  as  raised  when 
it  is  in  consequence  of  stress  of  weather  that  the  blockading  forces 
are  temporarily  withdrawn.  This  is  laid  down  in  Article  4.  It  must 
be  considered  limitative  in  the  sense  that  stress  of  weather  is  the  only 
form  of  compulsion  which  can  be  alleged.  If  the  blockading  forces 
were  withdrawn  for  any  other  reason,  the  blockade  would  be  regarded 
as  raised,  and,  if  it  were  resumed,  Articles  12  (last  rule)  and  13  would 
apply. 

Article  5.    A  blockade  must  be  applied  impartially  to  the  ships  of  all  nations. 

Blockade,  as  an  operation  of  lawful  warfare,  must  be  respected  by 
neutrals  in  so  far  as  it  really  remains  an  operation  of  war  which  has 


GENERAL  REPORT  TO  THE   CONFERENCE  137 

the  object  of  interrupting  all  commercial  relations  with  the  blockaded 
port.  It  may  not  be  made  the  means  of  allowing  a  belligerent  to  favor 
the  vessels  of  certain  nations  by  letting  them  pass.  This  is  the  point 
of  Article  5. 

Article  6.  The  commander  of  a  blockading  force  may  give  permission  to  a 
war-ship  to  enter,  and  subsequently  to  leave,  a  blockaded  port. 

Does  the  prohibition  which  applies  to  all  merchant  vessels  apply 
also  to  war-ships?  No  definite  reply  can  be  given.  The  commander 
of  the  blockading  forces  may  think  it  useful  to  cut  off  all  communica- 
tion with  the  blockaded  place  and  refuse  access  to  neutral  war-ships ; 
no  rule  is  imposed  on  him.  If  he  lets  them  in,  it  is  as  a  matter  of 
courtesy.  If  a  rule  has  been  drawn  up  merely  to  lay  down  this,  it  is 
in  order  that  it  may  not  be  claimed  that  a  blockade  has  ceased  to  be 
effective  on  account  of  leave  granted  to  such  and  such  neutral  war- 
ships. 

The  blockading  commander  must  act  impartially,  as  stated  in 
Article  5.  Nevertheless,  the  mere  fact  that  he  has  let  a  war-ship  pass 
does  not  oblige  him  to  let  pass  all  neutral  war-ships  which  may  come. 
It  is  a  question  of  judgment.  The  presence  of  a  neutral  war-ship  in  a 
blockaded  port  may  not  have  the  same  consequences  at  all  stages  of 
the  blockade,  and  the  commander  must  be  left  free  to  judge  whether 
he  can  be  courteous  without  making  any  sacrifice  of  his  military 
interests. 

Article  7.  In  circumstances  of  distress,  acknowledged  by  an  officer  of  the 
blockading  force,  a  neutral  vessel  may  enter  a  place  under  blockade,  and  sub- 
sequently leave  it,  provided  that  she  has  neither  discharged  nor  shipped  any 
cargo  there. 

Distress  can  explain  the  entrance  of  a  neutral  vessel  into  a  blockaded 
place,  for  instance,  if  she  is  in  v/ant  of  food  or  water,  or  needs  imme- 
diate repairs.  As  soon  as  her  distress  is  acknowledged  by  an  authority 
of  the  blockading  force,  she  may  cross  the  line  of  blockade ;  it  is  not 
a  favor  which  she  has  to  ask  of  the  humanity  or  courtesy  of  the 
blockading  authority.  The  latter  may  denv  the  state  of  distress  but 
when  once  it  is  proved  to  exist,  the  consequence  follows  of  itself.  The 
vessel  which  has  thus  entered  the  blockaded  port  will  not  be  obliged 
to  remain  there  for  the  whole  duration  of  the  blockade ;  she  may 
leave  as  soon  as  she  is  fit  to  do  so,  when  she  has  obtained  the  food  or 
water  which  she  needs,  or  when  she  has  been  repaired.    But  the  leave 


138  NAVAL  CONFERENCE  AT  LONDON 

granted  to  her  must  not  be  made  an  excuse  for  commercial  trans- 
actions ;  therefore  she  is  forbidden  to  discharge  or  ship  any  cargo. 

It  is  needless  to  say  that  a  blockading  squadron  which  insisted  on 
preventing  a  vessel  in  distress  from  passing,  might  do  so  if  she  afforded 
her  the  help  which  she  needed. 

Article  8.  A  blockade,  in  order  to  be  binding,  must  be  declared  in  accord- 
ance with  Article  9,  and  notified  in  accordance  with  Articles  11  and  16. 

Independently  of  the  condition  prescribed  by  the  Declaration  of 
Paris  that  it  must  be  effective,  a  blockade,  to  be  binding,  must  be 
declared  and  notified.  Article  8  confines  itself  to  laying  down  the 
principle  which  is  applied  by  the  following  articles. 

To  remove  all  possibility  of  misunderstanding  it  is  enough  to  define 
clearly  the  meaning  of  these  two  expressions,  which  will  frequently 
be  used.  The  declaration  of  blockade  is  the  act  of  the  competent 
authority  (a  government  or  commander  of  a  squadron)  stating  that 
a  blockade  is,  or  is  about  to  be,  established  under  conditions  to  be 
specified  (Article  9).  The  notification  is  the  fact  of  bringing  the 
declaration  of  blockade  to  the  knowledge  of  the  neutral  Powers  or  of 
certain  authorities  (Article  11). 

These  two  things — declaration  and  notification — will  in  most  cases 
be  done  previously  to  the  enforcement  of  the  rules  of  blockade,  that 
is  to  say,  to  the  real  prohibition  of  passage.  Nevertheless,  as  we 
shall  see  later,  it  is  sometimes  possible  for  passage  to  be  forbidden 
by  the  very  fact  of  the  blockade  which  is  brought  to  the  knowledge 
of  a  vessel  approaching  a  blockaded  port  by  means  of  a  notification 
which  is  special,  whereas  the  notification  which  has  just  been  defined, 
and  which  is  spoken  of  in  Article  11,  is  of  a  general  character. 

Article  9.    A  declaration  of  blockade  is  made  either  by  the  blockading  Power 
or  by  the  naval  authorities  acting  in  its  name. 
It  specifies — 

(1)  The  date  when  the  blockade  begins. 

(2)  The  geographical  limits  of  the  coastline  under  blockade. 

(3)  The  period  within  which  neutral  vessels  may  come  out. 

The  declaration  of  blockade  in  most  cases  emanates  from  the  bel- 
ligerent Government  itself.  That  Government  may  have  left  the  com- 
mander of  its  naval  forces  free  himself  to  declare  a  blockade  accord- 
ing to  the  circumstances.  There  will  not,  perhaps,  be  as  much  reason 
as  formerly  to  give  this  discretion,  because  of  the  ease  and  rapidity 


GENERAL  REPORT  TO   THE   CONFERENCE  139 

of  communication.     This,  being  merely  an  internal  question,  matters 
little. 

The  declaration  of  blockade  must  specify  certain  points  which  it  is 
in  the  interest  of  neutrals  to  know,  in  order  to  be  aware  of  the  extent 
of.  their  obligations.  The  moment  from  which  it  is  forbidden  to 
communicate  with  the  blockaded  place  must  be  exactly  known.  It  is 
important,  as  affecting  the  obligations  both  of  the  blockading  Power 
and  of  neutrals,  that  there  should  be  no  uncertainty  as  to  the  places 
really  blockaded.  Finally,  the  custom  has  long  been  established  of 
allowing  neutral  vessels  which  are  in  the  blockaded  port  to  leave  it. 
This  custom  is  here  confirmed,  in  the  sense  that  the  blockading  Power 
must  allow  a  period  within  which  vessels  may  leave ;  the  length  of 
this  period  is  not  fixed,  because  it  clearly  depends  on  very  varying 
circumstances,  but  it  is  understood  that  the  period  should  be  reasonable. 

Article  10.  If  the  operations  of  the  blockading  Power,  or  of  the  naval  author- 
ities acting  in  its  name,  do  not  tally  with  the  particulars,  which,  in  accordance 
with  Article  9(1)  and  (2),  must  be  inserted  in  the  declaration  of  blockade,  the 
declaration  is  void,  and  a  new  declaration  is  necessary  in  order  to  make  the 
blockade  operative. 

The  object  of  this  article  is  to  insure  the  observance  of  Article  9. 
Supposing  the  declaration  of  blockade  contains  statements  which  do 
not  tally  with  the  actual  facts ;  it  states  that  the  blockade  began,  or  will 
begin,  on  such  a  day,  whereas,  in  fact,  it  only  began  several  days 
later.  Its  geographical  limits  are  inaccurately  given;  they  are  wider 
than  those  within  which  the  blockading  forces  are  operating.  What 
shall  be  the  sanction?  The  nullity  of  the  declaration  of  blockade, 
which  prevents  it  from  being  operative.  If  then,  in  such  a  case,  a 
neutral  vessel  is  captured  for  breach  of  blockade,  she  can  refer  to  the 
nullity  of  the  declaration  of  blockade  as  a  plea  for  the  nullity  of  the 
capture;  if  her  plea  is  rejected  by  the  national  tribunal,  she  can  appeal 
to  the  international  court. 

To  avoid  misunderstandings,  the  sigr.ificance  of  this  provision  must 
be  noticed.  The  declaration  states  that  the  blockade  begins  on  the 
1st  of  February;  it  really  only  begins  on  the  8th.  It  is  needless  to 
say  that  the  declaration  had  no  effect  from  the  1st  to  the  8th,  because 
at  that  time  there  was  no  blockade  at  all ;  the  declaration  states  a 
fact,  but  does  not  take  the  place  of  one.  The  rule  goes  further:  The 
declaration  shall  not  even  be  operative  from  the  8th  onward ;  it  is 
definitely  void,  and  another  must  be  made. 


140  NAVAL  CONFERENCE  AT  LONDON 

There  is  no  question  here  of  cases  where  Article  9  is  disregarded 
by  neglect  to  allow  neutral  vessels  in  the  blockaded  port  time  to  leave 
it.  The  sanction  could  not  be  the  same.  There  is  no  reason  to  annul 
the  declaration  as  regards  neutral  vessels  wishing  to  enter  the  blockaded 
port.  A  special  sanction  is  needed  in  that  case,  and  it  is  provided 
by  Article  16,  paragraph  2. 

Article  11.     A  declaration  of  blockade  is  notified — 

(1)  To  neutral  Powers,  by  the  blockading  Power  by  means  of  a  communica- 
tion addressed  to  the  Governments  direct,  or  to  their  representatives  accredited 
to  it. 

(2)  To  the  local  authorities,  by  the  officer  commanding  the  blockading  force. 
The  local  authorities  will,  in  turn,  inform  the  foreign  consular  officers  at  the 
port  or  on  the  coastline  under  blockade  as  soon  as  possible. 

A  declaration  of  blockade  is  not  valid  unless  notified.  The  observ- 
ance of  a  rule  can  only  be  required  by  those  who  have  the  opportunity 
of  knowing  it. 

Two  notifications  must  be  made: 

1.  The  first  is  addressed  to  neutral  Powers  by  the  belligerent  Power, 
which  communicates  it  to  the  Governments  themselves  or  to  their 
representatives  accredited  to  it.  The  communication  to  the  Govern- 
ments will  in  most  cases  be  made  through  the  diplomatic  agents;  it 
might  happen  that  a  belligerent  had  no  diplomatic  relations  with  a 
neutral  country;  he  will  then  address  itself,  ordinarily  by  telegraph, 
directly  to  the  Government  of  that  country.  It  is  the  duty  of  the 
neutral  Governments  advised  of  the  declaration  of  blockade  to  take 
the  necessary  measures  to  dispatch  the  news  to  the  different  parts  of 
their  territory,  especially  their  ports. 

2.  The  second  notification  is  made  by  the  commander  of  the  block- 
ading force  to  the  local  authorities.  These  must  inform,  as  soon  as 
possible,  the  foreign  consuls  residing  at  the  blockaded  place  or  on  the 
blockaded  coastline.  These  authorities  would  be  responsible  for  the 
neglect  of  this  obligation.  Neutrals  might  suffer  loss  from  the  fact 
of  not  having  been  informed  of  the  blockade  in  sufficient  time. 

Article  12.  The  rules  as  to  declaration  and  notification  of  blockade  apply  to 
cases  where  the  limits  of  a  blockade  are  extended,  or  where  a  blockade  is  re- 
established after  having  been  raised. 

Supposing  a  blockade  is  extended  beyond  its  original  limits,  as 
regards  the  new  part,  it  is  a  new  blockade  and,  in  consequence,  the 
rules  as  to  declaration  and  notification  must  be  applied  to  it.     The 


GENERAL  REPORT  TO  THE  CONFERENCE  141 

same  is  true  in  cases  where  a  blockade  is  reestablished  after  having 
been  raised;  the  fact  that  a  blockade  has  already  existed  in  the  same 
locality  must  not  be  taken  into  account. 

Article  13.  The  voluntary  raising  of  a  blockade,  as  also  any  restriction  in  the 
limits  of  a  blockade,  must  be  notified  in  the  manner  prescribed  by  Article  11. 

It  is  indispensable  to  know  of  the  establishment  of  a  blockade,  it 
would  at  least  be  useful  for  the  public  to  be  told  of  its  raising,  since 
it  puts  an  end  to  the  restrictions  imposed  on  the  relations  of  neutrals 
with  the  blockaded  port.  It  has  therefore  been  thought  fit  to  ask  the 
Power  which  raises  a  blockade  to  make  known  the  fact  in  the  form  in 
which  it  has  notified  the  establishment  of  the  blockade.  (Article  11.) 
Only  it  must  be  observed  that  the  sanction  could  not  be  the  same 
in  the  two  cases.  To  insure  the  notification  of  the  declaration  of 
blockade  there  is  a  direct  and  adequate  sanction ;  an  unnotified  blockade 
is  not  binding.  In  the  case  of  the  raising  there  can  be  no  parallel  to 
this.  The  public  will  really  gain  by  the  raising,  even  without  being 
told  of  it  officially.  The  blockading  Power  which  did  not  notify  the 
raising  would  expose  itself  to  diplomatic  remonstrances  on  the  ground 
of  the  non-fulfillment  of  an  international  duty.  This  non-fulfillment 
will  have  more  or  less  serious  consequences,  according  to  circum- 
stances. Sometimes  the  raising  of  the  blockade  will  really  have  become 
known  at  once,  and  official  notification  would  add  nothing  to  this 
eflFective  publicity. 

It  is  needless  to  add  that  only  the  voluntary  raising  of  a  blockade 
is  here  in  question ;  if  the  blockading  force  has  been  driven  off  by 
the  arrival  of  enemy  forces,  it  can  not  be  held  bound  to  make  known 
its  defeat,  which  its  adversary  will  undertake  to  do  without  delay. 
Instead  of  raising  a  blockade,  a  belligerent  may  confine  himself  to 
restricting  it;  he  only  blockades  one  port  instead  of  two.  As  regards 
the  port  which  ceases  to  be  included  in  the  blockade,  it  is  a  case  of 
voluntary  raising,  and  consequentlv  the  same  rule  applies. 

Article  14.  The  liability  of  a  neutral  vessel  to  capture  for  breach  of  blockade 
is  contingent  on  her  knowledge,  actual  or  presumptive,  of  the  blockade. 

For  a  vessel  to  be  liable  to  capture  for  breach  of  blockade,  the  first 
condition  is  that  she  must  be  aware  of  the  blockade,  because  it  is 
not  just  to  punish  some  one  for  breaking  a  rule  which  he  does  not 
know.     Nevertheless,  there  are  circumstances  in  which,  even  in  the 


142  NAVAL  CONFERENCE  AT  LONDON 

absence  of  proof  of  actual  knowledge,  knowledge  may  be  presumed, 
the  right  of  rebutting  this  presumption  being  always  reserved  to  the 
party  concerned.     (Article  15.) 

Article  15.  Failing  proof  to  the  contrary,  knowledge  of  the  blockade  is  pre- 
sumed if  the  vessel  left  a  neutral  port  subsequently  to  the  notification  of  the 
blockade  to  the  Power  to  which  such  port  belongs,  provided  that  such  notifica- 
tion was  made  in  sufficient  time. 

A  vessel  has  left  a  neutral  port  subsequently  to  the  notification  of 
the  blockade  made  to  the  Powers  to  which  the  port  belongs.  Was 
this  notification  made  in  sufficient  time;  that  is  to  say,  so  as  to  reach 
the  port  in  question,  where  it  had  to  be  published  by  the  port  authori- 
ties? That  is  a  question  of  fact  to  be  examined.  If  it  is  settled 
affirmatively,  it  is  natural  to  suppose  that  the  vessel  was  aware  of  the 
blockade  at  the  time  of  her  departure.  This  presumption  is  not,  how- 
ever, absolute,  and  the  right  to  adduce  proof  to  the  contrary  is  reserved. 
It  is  for  the  incriminated  vessel  to  furnish  it  by  showing  that  circum- 
stances existed  which  explain  her  ignorance. 

Article  16.  If  a  vessel  approaching  a  blockaded  port  has  no  knowledge,  actual 
or  presumptive,  of  the  blockade,  the  notification  must  be  made  to  the  vessel 
itself  by  an  officer  of  one  of  the  ships  of  the  blockading  force.  This  notifica- 
tion should  be  entered  in  the  vessel's  log-book,  and  must  state  the  day  and 
hour  and  the  geographical  position  of  the  vessel  at  the  time. 

If  through  the  negligence  of  the  officer  commanding  the  blockading  force  no 
declaration  of  blockade  has  been  notified  to  the  local  authorities,  or  if  in  the 
declaration,  as  notified,  no  period  has  been  mentioned  within  which  neutral 
vessels  may  come  out,  a  neutral  vessel  coming  out  of  the  blockaded  port  must 
be  allowed  to  pass  free. 

A  vessel  is  supposed  to  be  approaching  a  blockaded  port  without  its 
being  possible  to  tell  whether  she  knows  or  is  presumed  to  know  of 
the  existence  of  the  blockade;  no  notification  in  the  sense  of  Article 
11  has  reached  her.  In  that  case  a  special  notification  is  necessary  in 
order  that  the  vessel  may  be  duly  informed  of  the  fact  of  the  blockade. 
This  notification  is  made  to  the  vessel  herself  by  an  officer  of  one  of 
the  war-ships  of  the  blockading  force,  and  is  entered  on  the  vessel's 
log-book.  It  may  be  made  to  the  vessels  of  a  convoyed  fleet  by  a 
neutral  war-ship  through  the  commander  of  the  convoy,  who  acknowl- 
edges receipt  of  it  and  takes  the  necessary  measures  to  have  the 
notification  entered  on  the  log-book  of  each  vessel.  The  entry  notes 
the  time  and  place  where  it  is  made,  and  the  names  of  the  blockaded 


GENERAL  REPORT  TO  THE   CONFERENCE  143 

places.  The  vessel  is  prevented  from  passing,  and  the  blockade  is 
thus  made  binding  for  her,  though  not  previously  notified;  this  adverb 
is  therefore  omitted  in  Article  S.  It  can  not  be  admitted  that  a  mer- 
chant vessel  should  claim  to  disregard  a  real  blockade,  and  to  break 
it  for  the  sole  reason  that  she  v/as  not  personally  aware  of  it.  But, 
though  she  may  be  prevented  from  passing,  she  may  only  be  captured 
when  she  tries  to  break  blockade  after  receiving  the  notification. 
This  special  notification  is  seen  to  play  a  very  small  part,  and  must 
not  be  confused  with  the  special  notification  absolutely  insisted  on  by 
the  practice  of  certain  navies. 

What  has  just  been  said  refers  to  the  vessel  coming  in.  The  vessel 
leaving  the  blockaded  port  must  also  be  considered.  If  a  regular 
notification  of  the  blockade  has  been  made  to  the  local  authorities 
(Article  11  (2)  ),  the  position  is  simple  :  the  vessel  is,  or  is  presumed  to 
be,  aware  of  the  blockade,  and  is  therefore  liable  to  capture  in  case 
she  has  not  kept  to  the  period  for  leaving  allowed  by  the  blockading 
Power.  But  it  may  happen  that  no  declaration  of  blockade  has  been 
notified  to  the  local  authorities,  or  that  that  declaration  has  contained 
no  mention  of  the  period  allowed  for  leaving,  in  spite  of  the  rule 
prescribed  by  Article  9  (3).  The  sanction  of  the  blockading  Power's 
oflfense  is  that  the  vessel  must  be  allowed  to  go  free.  It  is  a  strong 
sanction,  which  corresponds  exactly  with  the  nature  of  the  oflfense 
committed,  and  will  be  the  best  means  of  preventing  its  commission. 

It  is  needless  to  say  that  this  provision  only  concerns  vessels  to 
which  the  period  allowed  for  leaving  would  have  been  of  use — that  is 
to  say,  neutral  vessels  which  were  in  the  port  at  the  time  when  the 
blockade  was  established ;  it  has  nothing  to  do  with  vessels  which 
are   in  the  port  after  having  broken  blockade. 

The  commander  of  the  blockading  squadron  may  always  repair  his 
omission  or  mistake,  make  a  notification  of  the  blockade  to  the  local 
authorities,  or  complete  that  which  he  has  already  made. 

As  is  seen  from  these  explanations,  the  most  ordinary  case  is  assumed 
— that  in  which  the  absence  of  notification  implies  negligence  on  the 
part  of  the  commander  of  the  blockading  forces.  The  situation  is 
clearly  altogether  changed  if  the  commander  has  done  all  in  his  power 
to  make  the  notification,  but  has  been  prevented  from  doing  so  by  lack 
of  good-will  on  the  part  of  the  local  authorities,  who  have  inter- 
cepted all  communications  from  outside.  In  that  case  he  can  not  be 
forced  to  let  pass  vessels  which  wish  to  leave,  and  which,  in  the  absence 


144  NAVAL  CONFERENCE  AT  LONDON 

of  the  prescribed  notification  and  of  presumptive  knowledge  of  the 
blockade,  are  in  a  position  similar  to  that  contemplated  in  Article  16, 
paragraph  1. 

Article  17.  Neutral  vessels  may  not  be  captured  for  breach  of  blockade  ex- 
cept within  the  area  of  operations  of  the  war-ships  detailed  to  render  the  block- 
ade effective. 

The  other  condition  of  the  liability  of  a  vessel  to  capture  is  that 
she  should  be  found  within  the  area  of  operations  of  the  war-ships 
detailed  to  make  the  blockade  effective ;  it  is  not  enough  that  she  should 
be  on  her  way  to  the  blockaded  port. 

As  for  what  constitutes  the  area  of  operations,  an  explanation  has 
been  given  which  has  been  universally  accepted,  and  is  quoted  here 
as  furnishing  the  best  commentary  on  the  rule  laid  down  by  Article  17 : 

When  a  Government  decides  to  undertake  blockading  opera- 
tions against  some  part  of  the  enemy  coast  it  details  a  certain 
number  of  war-ships  to  take  part  in  the  blockade  and  intrusts  the 
command  to  an  officer  whose  duty  is  to  use  them  for  the  purpose 
of  making  the  blockade  effective.  The  commander  of  the  naval 
force  thus  formed  posts  the  ships  at  his  disposal  according  to 
the  line  of  the  coast  and  the  geographical  position  of  the  block- 
aded places  and  instructs  each  ship  as  to  the  part  which  she  has 
to  play,  and  especially  as  to  the  zone  which  she  is  to  watch.  All 
the  zones  watched  taken  together,  and  so  organized  as  to  make 
the  blockade  effective,  form  the  area  of  operations  of  the  block- 
ading naval  force. 

The  area  of  operations  so  constituted  is  intimately  connected 
with  the  effectiveness  of  the  blockade  and  also  with  the  number 
of  ships  employed  on  it. 

Cases  may  occur  in  which  a  single  ship  will  be  enough  to  keep 
a  blockade  effective — for  instance,  at  the  entrance  of  a  port  or  at 
the  mouth  of  a  river  with  a  small  estuary,  so  long  as  circumstances 
allow  the  blockading  ship  to  stay  near  enough  to  the  entrance.  In 
that  case  the  area  of  operations  is  itself  near  the  coast.  But,  on 
the  other  hand,  if  circumstances  force  her  to  remain  far  off,  one 
ship  may  not  be  enough  to  secure  effectiveness,  and  to  maintain 
this  she  will  then  have  to  be  supported  by  others.  From  this  cause 
the  area  of  operations  becomes  wider  and  extends  farther  from  the 
coast.  It  may  therefore  vary  with  circumstances  and  with  the 
number  of  blockading  ships,  but  it  will  always  be  limited  by  the 
condition  that  effectiveness  must  be  assured. 

It  does  not  seem  possible  to  fix  the  limits  of  the  area  of  oper- 
ations in  definite  figures  any  more  than  to  fix  beforehand  and 


GENERAL  REPORT  TO   THE   CONFERENCE  145 

definitely  the  number  of  ships  necessary  to  assure  the  effectiveness 
of  any  blockade.  These  points  must  be  settled  according  to  cir- 
cumstances in  each  particular  case  of  a  blockade.  This  might  per- 
haps be  done  at  the  time  of  making  the  declaration. 
•  It  is  clear  that  a  blockade  will  not  be  established  in  the  same  way 
on  a  defenseless  coast  as  on  one  possessing  all  modern  means  of 
defense.  In  the  latter  case  there  could  be  no  question  of  enforc- 
ing a  rule  such  as  that  which  formerly  required  that  ships  should 
be  stationary  and  sufficiently  close  to  the  blockaded  places;  the 
position  would  be  too  dangerous  for  the  ships  of  the  blockading 
force,  which,  besides,  now  possess  more  powerful  means  of  watch- 
ing effectively  a  much  wider  zone  than  formerly. 

The  area  of  operations  of  a  blockading  naval  force  may  be  rather 
wide,  but  as  it  depends  on  the  number  of  ships  contributing  to  the 
effectiveness  of  the  blockade  and  is  always  limited  by  the  condition 
that  it  should  be  effective,  it  will  never  reach  distant  seas  where 
merchant  vessels  sail  which  are,  perhaps,  making  for  the  blockaded 
ports,  but  whose  destination  is  contingent  on  the  changes  which 
circumstances  may  produce  in  the  blockade  during  their  voyage. 
To  sum  up,  the  idea  of  the  area  of  operations  joined  with  that  of 
effectiveness,  as  we  have  tried  to  define  it — that  is  to  say,  including 
the  zone  of  operations  of  the  blockading  forces — allows  the  bellig- 
erent effectively  to  exercise  the  right  of  blockade,  which  he  ad- 
mittedly possesses,  and,  on  the  other  hand,  saves  neutrals  from 
exposure  to  the  drawbacks  of  blockade  at  a  great  distance,  while 
it  leaves  them  free  to  run  the  risk  which  they  knowingly  incur  by 
approaching  points  to  which  access  is  forbidden  by  the  belligerent. 

Article  18.  The  blockading  forces  must  not  bar  access  to  neutral  ports  or 
coasts. 

This  rule  has  been  thought  necessary  the  better  to  protect  the  com- 
mercial interests  of  neutral  covmtries ;  it  completes  Article  1,  according 
to  which  a  blockade  must  not  extend  beyond  the  ports  and  coasts  of 
the  enemy,  which  implies  that,  as  it  is  an  operation  of  war,  it  must  not 
be  directed  against  a  neutral  port,  in  spite  of  the  importance  to  a  bel- 
ligerent of  the  part  played  by  that  neutral  port  in  supplying  his 
adversary. 

Article  19.  Whatever  may  be  the  ulterior  destination  of  a  vessel  or  of  her 
cargo,  she  can  not  be  captured  for  breach  of  blockade  if,  at  the  moment,  she  is 
on  her  way  to  a  non-blockaded  port. 

It  is  the  true  destination  of  the  vessel  which  must  be  considered  when 
a  breach  of  blockade  is  in  question,  and  not  the  ulterior  destination  of 
the  cargo.     Proof  or  presumption  of  the  latter  is  therefore  not  enough 


146  NAVAL  CONFERENCE  AT  LONDON 

to  justify  the  capture,  for  breach  of  blockade,  of  a  ship  actually  bound 
for  an  unblockaded  port.  But  the  cruiser  might  always  prove  that  this 
destination  to  an  unblockaded  port  is  only  apparent,  and  that  in  reality 
the  immediate  destination  of  the  vessel  is  the  blockaded  port. 

Article  20.  A  vessel  which  has  broken  blockade  outward,  or  which  has  at- 
tempted to  break  blockade  inward,  is  liable  to  capture  so  long  as  she  is  pursued 
by  a  ship  of  the  blockading  force.  If  the  pursuit  is  abandoned  or  if  the  blockade 
is  raised,  her  capture  can  no  longer  be  effected. 

A  vessel  has  left  the  blockaded  port  or  has  tried  to  enter  it.  Shall 
she  remain  indefinitely  liable  to  capture?  To  reply  by  an  absolute 
affirmative  would  be  to  go  too  far.  This  vessel  must  remain  liable  to 
capture  so  long  as  she  is  pursued  by  a  ship  of  the  blockading  force ;  it 
would  not  be  enough  for  her  to  be  encountered  by  a  cruiser  of  the 
blockading  enemy  which  did  not  belong  to  the  blockading  squadron. 
The  question  whether  or  not  the  pursuit  is  abandoned  is  one  of  fact; 
it  is  not  enough  that  the  vessel  should  take  refuge  in  a  neutral  port. 
The  ship  which  is  pursuing  her  can  wait  till  she  leaves  it,  so  that  the 
pursuit  is  necessarily  suspended,  but  not  abandoned.  Capture  is  no 
longer  possible  when  the  blockade  has  been  raised. 

Article  21.  A  vessel  found  guilty  of  breach  of  blockade  is  liable  to  condemna- 
tion. The  cargo  is  also  condemned  unless  it  is  proved  that  at  the  time  of  the 
shipment  of  the  goods  the  shipper  neither  knew  nor  could  have  known  of  the 
intention  to  break  the  blockade. 

The  vessel  is  condemned  in  all  cases.  The  cargo  is  also  condemned 
on  principle,  but  the  interested  party  is  allowed  to  oppose  a  plea  of 
good  faith;  that  is  to  say,  to  prove  that  when  the  goods  were  shipped 
the  shipper  did  not  know  and  could  not  have  known  of  the  intention 
to  break  the  blockade. 

Chapter  II — Contraband  of  War 

This  chapter  is  one  of  the  most,  if  not  the  most,  important  of  the 
Declaration.  It  deals  with  a  matter  which  has  sometimes  given  rise 
to  serious  disputes  between  belligerents  and  neutrals.  Therefore  regu- 
lations to  establish  exactly  the  rights  and  duties  of  each  have  often 
been  urgently  called  for.  Peaceful  trade  may  be  grateful  for  the  pre- 
cision with  which  a  subject  of  the  highest  importance  to  its  interests 
is  now  for  the  first  time  treated. 

The  notion  of  contraband  of  war  connotes  two  elements :     It  con- 


GENERAL    REPORT   TO    THE    CONFERENCE   •  147 

cerns  objects  of  a  certain  kind  and  with  a  certain  destination.  Can- 
nons, for  instance,  are  carried  in  a  neutral  vessel.  Are  they  contra- 
band? That  depends;  if  they  are  destined  for  a  neutral  Government, 
no ;  if  they  are  destined  for  an  enemy  Government,  yes.  The  trade 
in  certain  articles  is  by  no  means  generally  forbidden  during  war ;  it  is 
the  trade  with  the  enemy  in  these  articles  which  is  illicit,  and  against 
which  the  belligerent  to  whose  detriment  it  is  carried  on  may  protect 
himself  by  the  measures  allowed  by  international  law. 

Articles  22  and  24  enumerate  the  articles  which  may  be  contraband 
of  war,  and  which  are  so  in  fact  when  they  have  a  certain  destination 
laid  down  in  Articles  30  and  33.  The  traditional  distinction  between 
absolute  and  conditional  contraband  is  maintained.  Articles  22  and 
30  refer  to  the  former,  and  Articles  24  and  33  to  the  latter. 

Article  22.  The  following  articles  may,  without  notice,^  be  treated  as  contra- 
band of  war,  under  the  name  of  absolute  contraband : 

(1)  Arms  of  all  kinds,  including  arms  for  sporting  purposes,  and  their  dis- 
tinctive component  parts. 

(2)  Projectiles,  charges,  and  cartridges  of  all  kinds,  and  their  distinctive 
component  parts. 

(3)  Powder  and  explosives  specially  prepared  for  use  in  war. 

(4)  Gun-mountings,  limber  boxes,  limbers,  military  wagons,  field  forges,  and 
their  distinctive  component  parts. 

(5)  Clothing  and  equipment  of  a  distinctively  military  character. 

(6)  All  kinds  of  harness  of  a  distinctively  military  character. 

(7)  Saddle,  draft,  and  pack  animals  suitable  for  use  in  war. 

(8)  Articles  of  camp  equipment,  and  their  distinctive  component  parts. 

(9)  Armor  plates. 

(10)  War-ships,  including  boats  and  their  distinctive  component  parts  of  such 
a  nature  that  they  can  only  be  used  on  a  vessel  of  war. 

(11)  Implements  and  apparatus  designed  exclusively  for  the  manufacture  of 
munitions  of  war,  for  the  manufacture  or  repair  of  arms,  or  war  material  for 
use  on  land  or  sea. 

This  list  is  that  drawn  up  at  the  Second  Peace  Conference  by  the 
committee  charged  with  the  special  study  of  the  question  of  contraband. 
It  was  the  result  of  mutual  concessions,  and  it  has  not  seemed  wise  to 
reopen  the  discussion  on  this  subject  for  the  purpose  either  of  cutting 
out  or  of  adding  articles. 


1  In  view  of  the  difficulty  of  finding  an  exact  equivalent  in  English  for  the 
expression  "de  plcin  droit,"  it  has  been  decided  to  translate  it  by  the  words 
"without  notice,"  which  represent  the  meaning  attached  to  it  by  the  draftsman 
of  the  present  General  Report.     (See  next  page.) 


148  NAVAL    CONFERENCE   AT    LONDON 

The  words  "de  plein  droit"  (without  notice)  imply  that  the  provision 
becomes  operative  by  the  mere  fact  of  the  war,  and  that  no  declaration 
by  the  belligerents  is  necessary.  Trade  is  already  warned  in  time  of 
peace. 

Article  23.  Articles  exclusively  used  for  war  may  be  added  to  the  list  of 
absolute  contraband  by  a  declaration,  which  must  be  notified. 

Such  notification  must  be  addressed  to  the  Governments  of  other  Powers,  or 
to  their  representatives  accredited  to  the  Power  making  the  declaration.  A 
notification  made  after  the  outbreak  of  hostilities  is  addressed  only  to  neutral 
Powers. 

Certain  discoveries  or  inventions  might  make  the  list  in  Article  22 
insufficient.  An  addition  may  be  made  to  it  on  condition  that  it  con- 
cerns articles  exclusively  used  for  war.  This  addition  must  be  notified 
to  the  other  Powers,  which  will  take  the  necessary  measures  to  inform 
their  subjects  of  it.  In  theory  the  notification  may  be  made  in  time  of 
peace  or  of  war.  The  former  case  will  doubtless  rarely  occur,  because 
a  State  which  made  such  a  notification  might  be  suspected  of  meditat- 
ing a  war;  it  would,  nevertheless,  have  the  advantage  of  informing 
trade  beforehand.     There  was  no  reason  for  making  it  impossible. 

The  right  given  to  a  Power  to  make  an  addition  to  the  list  by  a  mere 
declaration  has  been  thought  too  wide.  It  should  be  noticed  that  this 
right  does  not  involve  the  dangers  supposed.  In  the  first  place,  it  is 
understood  that  the  declaration  is  only  operative  for  the  Power  which 
makes  it,  in  the  sense  that  the  article  added  will  only  be  contraband 
for  it,  as  a  belligerent ;  other  States  may,  of  course,  also  make  a  similar 
declaration.  The  addition  may  only  refer  to  articles  exclusively  used 
for  war ;  at  present  it  would  be  hard  to  mention  any  such  articles  which 
are  not  included  in  the  list.  The  future  is  left  free.  If  a  Power 
claimed  to  add  to  the  list  of  absolute  contraband  articles  not  exclusively 
used  for  war,  it  might  expose  itself  to  diplomatic  remonstrances,  be- 
cause it  would  be  disregarding  an  accepted  rule.  Besides,  there  would 
be  an  eventual  resort  to  the  International  Prize  Court.  Suppose  that 
the  court  holds  that  the  articles  mentioned  in  the  declaratior  of  abso- 
lute contraband  is  wrongly  placed  there  because  it  is  not  exclusively 
used  for  war,  but  that  it  might  have  been  included  in  a  declaration  of 
conditional  contraband.  Confiscation  may  then  be  justified  if  the  cap- 
ture was  made  in  the  conditions  laid  down  for  this  kind  of  contraband 
(Articles  33-35)  which  diflfer  from  those  enforced  for  absolute  contra- 
band (Article  30). 


GENERAL  REPORT  TO   THE   CONFERENCE  149 

It  had  been  suggested  that,  in  the  interest  of  neutral  trade,  a  period 
should  elapse  between  the  notification  and  its  enforcement.  But  that 
would  be  very  damaging  to  the  belligerent,  whose  object  is  precisely  to 
protect  himself,  since,  during  that  period,  the  trade  in  articles  which 
he  thinks  dangerous  would  be  free  and  the  effect  of  his  measure  a 
failure.  Account  has  been  taken,  in  another  form,  of  the  consider- 
ations of  equity  which  have  been  adduced  (see  Article  43). 

Article  24.  The  following  articles,  susceptible  of  use  in  war  as  well  as  for 
purposes  of  peace,  may,  without  notice,^  be  treated  as  contraband  of  war,  under 
the  name  of  conditional  contraband  : 

(1)  Foodstuffs. 

(2)  Forage  and  grain,  suitable  for  feeding  animals. 

(3)  Clothing,  fabrics  for  clothing,  and  boots  and  shoes,  suitable  for  use  in 
war. 

(4)  Gold  and  silver  in  coin  or  bullion ;  paper  money. 

(5)  Vehicles  of  all  kinds  available  for  use  in  war,  and  their  component  parts. 

(6)  Vessels,  craft,  and  boats  of  all  kinds ;  floating  docks,  parts  of  docks,  and 
their  component  parts. 

(7)  Railway  material,  both  fixed  and  rolling-stock,  and  material  for  tele- 
graphs, wireless  telegraphs,  and  telephones. 

(8)  Balloons  and  flying  machines  and  their  distinctive  component  parts,  to- 
gether with  accessories  and  articles  recognizable  as  intended  for  use  in  connec- 
tion with  balloons  and  flying  machines. 

(9)  Fuel ;  lubricants. 

(10)  Powder  and  explosives  not  specially  prepared  for  use  in  war. 

(11)  Barbed  wire  and  implements  for  fixing  and  cutting  the  same. 

(12)  Horseshoes  and  shoeing  materials. 

(13)  Harness  and  saddlery. 

(14)  Field  glasses,  telescopes,  chronometers,  and  all  kinds  of  nautical  instru- 
ments. 

On  the  expression  "de  plein  droit"  (without  notice)  the  same  remark 
must  be  made  as  with  regard  to  Article  22.  The  articles  enumerated 
are  only  conditional  contraband  if  they  have  the  destination  specified 
in  Article  33. 

Foodstuflfs  include  products  necessary  or  useful  for  sustaining  man, 
whether  solid  or  liquid. 

Paper  money  only  includes  inconvertible  paper  money,  i.  e.,  bank 
notes  which  may  or  not  be  legal  tender.  Bills  of  exchange  and  checks 
are  excluded. 

Engines  and  boilers  are  included  in  (6). 


^  See  note  to  Article  22. 


150  NAVAL  CONFERENCE  AT  LONDON 

Railway  material  includes  fixtures  (such  as  rails,  sleepers,  turntables, 
parts  of  bridges),  and  rolling-stock  (such  as  locomotives,  carriages, 
and  trucks). 

Article  25.  Articles  susceptible  of  use  in  war  as  well  as  for  purposes  of  peace, 
other  than  those  enumerated  in  Articles  22  and  24,  may  be  added  to  the  list  of 
conditional  contraband  by  a  declaration,  which  must  be  notified  in  the  manner 
provided  for  in  the  second  paragraph  of  Article  23. 

This  provision  corresponds,  as  regards  conditional  contraband,  to 
that  in  Article  23  as  regards  absolute  contraband. 

Article  26.  If  a  Power  waives,  so  far  as  it  is  concerned,  the  right  to  treat  as 
contraband  of  war  an  article  comprised  in  any  of  the  classes  enumerated  in 
Articles  22  and  24,  such  intention  shall  be  announced  by  a  declaration,  which 
must  be  notified  in  the  manner  provided  for  in  the  second  paragraph  of 
Article  23. 

A  belligerent  may  not  wish  to  use  the  right  to  treat  as  contraband 
of  war  all  the  articles  included  in  the  above  lists.  It  may  suit  him  to 
add  to  conditional  contraband  an  article  included  in  absolute  contra- 
band or  to  declare  free,  so  far  as  he  is  concerned,  the  trade  in  some 
article  included  in  one  class  or  the  other.  It  is  desirable  that  he  should 
make  known  his  intention  on  this  subject,  and  he  will  probably  do  so 
in  order  to  have  the  credit  of  the  measure.  If  he  does  not  do  so,  but 
confines  himself  to  giving  instructions  to  his  cruisers,  the  vessels 
searched  will  be  agreeably  surprised  if  the  searcher  does  not  reproach 
them  with  carrying  what  they  themselves  consider  contraband.  Noth- 
ing can  prevent  a  Power  from  making  such  a  declaration  in  time  of 
peace.     See  what  is  said  as  regards  Article  23. 

Article  21.  Articles  which  are  not  susceptible  of  use  in  war  may  not  be  de- 
clared contraband  of  war. 

The  existence  of  a  so-called  free  list  (Article  28)  makes  it  useful 
thus  to  put  on  record  that  articles  which  can  not  be  used  for  purposes 
of  war  may  not  be  declared  contraband  of  war.  It  might  have  been 
thought  that  articles  not  included  in  that  list  might  at  least  be  declared 
conditional  contraband. 

Article  28.    The  following  may  not  be  declared  contraband  of  war : 

(1)  Raw  cotton,  wool,  silk,  jute,  flax,  hemp,  and  other  raw  materials  of  the 
textile  industries,  and  yarns  of  the  same. 

(2)  Oil  seeds  and  nuts;  copra. 

(3)  Rubber,  resins,  gums,  and  lacs ;  hops. 


GENERAL   REPORT  TO   THE   CONFERENCE  151 

(4)  Raw  hides  and  horns,  bones,  and  ivory. 

(5)  Natural  and  artificial  manures,  including  nitrates  and  phosphates  for 
agricultural  purposes. 

(6)  Metallic  ores. 

(7)  Earths,  clays,  lime,  chalk;  stone,  including  marble,  bricks,  slates,  and 
tiles. 

(8)  Chinaware  and  glass. 

(9)  Paper  and  paper-making  materials. 

(10)  Soap,  paint  and  colors,  including  articles  exclusively  used  in  their  man- 
ufacture, and  varnish. 

(11)  Bleaching  powder,  soda  ash,  caustic  soda,  salt  cake,  ammonia,  sulphate 
of  ammonia,  and  sulphate  of  copper. 

(12)  Agricultural,  mining,  textile,  and  printing  machinery. 

(13)  Precious   and   semi-precious   stones,   pearls,   mother-of-pearl,   and   coral. 

(14)  Clocks  and  watches,  other  than  chronometers. 

(15)  Fashion  and  fancy  goods. 

(16)  Feathers  of  all  kinds,  hairs,  and  bristles. 

(17)  Articles  of  household  furniture  and  decoration;  office  furniture  and 
requisites. 

To  lessen  the  drawbacks  of  war  as  regards  neutral  trade  it  has  been 
thought  useful  to  draw  up  this  so-called  free  list,  but  this  does  not 
mean,  as  has  been  explained  above,  that  all  articles  outside  it  might  be 
declared  contraband  of  war. 

The  ores  here  referred  to  are  the  product  of  mines  from  which 
metals  are  derived. 

There  was  a  demand  that  dyestufifs  should  be  included  in  (10),  but 
this  seemed  too  general,  for  there  are  materials  from  which  colors  are 
derived,  such  as  coal,  which  also  have  other  uses.  Products  only  used 
for  making  colors  enjoy  the  exemption. 

"Articles  de  Paris,"  an  expression  the  meaning  of  which  is  univer- 
sally understood,  come  under  (15). 

(16)  re-fers  to  the  hair  of  certain  animals,  such  as  pigs  and  wild 
boars. 

Carpets  and  mats  come  under  household  furniture  and  orna- 
ments (17). 

Article  29.    Likewise  the  following  may  not  be  treated  as  contraband  of  war. 

(1)  Articles  serving  exclusively  to  aid  the  sick  and  wounded.  They  can, 
however,  in  case  of  urgent  military  necessity  and  subject  to  the  payment  of 
compensation,  be  requisitioned,  if  their  destination  is  that  specified  in  Article  30. 

(2)  Articles  intended  for  the  use  of  the  vessel  in  which  they  are  found,  as 
well  as  those  intended  for  the  use  of  her  crew  and  passengers  during  the  voyage. 


152  NAVAL  CONFERENCE  AT  LONDON 

The  articles  enumerated  in  Article  29  are  also  excluded  from  treat- 
ment as  contraband,  but  for  reasons  different  from  those  which  have 
led  to  the  inclusion  of  the  list  in  Article  28. 

Motives  of  humanity  have  exempted  articles  exclusively  used  to  aid 
the  sick  and  wounded,  which,  of  course,  include  drugs  and  different 
medicines.  This  does  not  refer  to  hospital  ships,  which  enjoy  special 
immunity  under  the  convention  of  The  Hague  of  the  18th  October, 
1907,  but  to  ordinary  merchant  vessels,  whose  cargo  includes  articles 
of  the  kind  mentioned.  The  cruiser  has,  however,  the  right,  in  case 
of  urgent  necessity,  to  requisition  such  articles  for  the  needs  of  her 
crew  or  of  the  fleet  to  which  she  belongs,  but  they  can  only  be  requisi- 
tioned on  payment  of  compensation.  It  must,  however,  be  observed 
that  this  right  of  requisition  may  not  be  exercised  in  all  cases.  The 
articles  in  question  must  have  the  destination  specified  in  Article  30 — 
that  is  to  say,  an  enemy  destination.  Otherwise,  the  ordinary  law 
regains  its  sway;  a  belligerent  could  not  have  the  right  of  requisition 
as  regards  neutral  vessels  on  the  high  seas. 

Articles  intended  for  the  use  of  the  vessel,  which  might  in  them- 
selves and  by  their  nature  be  contraband  of  war,  may  not  be  so  treated; 
for  instance,  arms  intended  for  the  defense  of  the  vessel  against  pirates 
or  for  making  signals.  The  same  is  true  of  articles  intended  for  the 
use  of  the  crew  and  passengers  during  the  voyage ;  the  crew  here  in- 
cludes all  persons  in  the  service  of  the  vessel  in  general. 

Destination  of  contraband. — As  has  been  said,  the  second  element 
in  the  notion  of  contraband  is  destination.  Great  difficulties  have 
arisen  on  this  subject,  which  find  expression  in  the  theory  of  contin- 
uous voyage,  so  often  attacked  or  adduced  without  a  clear  comprehen- 
sion of  its  exact  meaning.  Cases  must  simply  be  considered  on  their 
merits  so  as  to  see  how  they  can  be  settled  without  unnecessarily 
annoying  neutrals  or  sacrificing  the  legitimate  rights  of  belligerents. 

In  order  to  effect  a  compromise  between  conflicting  theories  and 
practices,  absolute  and  conditional  contraband  have  been  differently 
treated  in  this  connection. 

Articles  30  to  32  refer  to  absolute,  and  Articles  33  to  36  to  condi- 
tional contraband. 

Article  30.  Absolute  contraband  is  liable  to  capture  if  it  is  shown  to  be 
destined  to  territory  belonging  to  or  occupied  by  the  enemy,  or  to  the  armed 
forces  of  the  enemy.  It  is  immaterial  whether  the  carriage  of  the  goods  is 
direct  or  entails  transshipment  or  a  subsequent  transport  by  land. 


GENERAL    REPORT    TO    THE    CONFERENCE  153 

The  articles  included  in  the  list  in  Article  22  are  absolute  contraband 
when  they  are  destined  for  territory  belonging  to  or  occupied  by  the 
enemy,  or  for  his  armed  military  or  naval  forces.  These  articles  are 
liable  to  capture  as  soon  as  a  final  destination  of  this  kind  can  be 
shown  by  the  captor  to  exist.  It  is  not,  therefore,  the  destination  of 
the  vessel  which  is  decisive,  but  that  of  the  goods.  It  makes  no  dif- 
ference if  these  goods  are  on  board  a  vessel  which  is  to  discharge 
them  in  a  neutral  port ;  as  soon  as  the  captor  is  able  to  show  that  they 
are  to  be  forwarded  from  there  by  land  or  sea  to  an  enemy  country 
it  is  enough  to  justify  the  capture  and  subsequent  condemnation  of 
the  cargo.  The  very  principle  of  continuous  voyage,  as  regards  abso- 
lute contraband,  is  established  by  Article  30.  The  journey  made  by 
the  goods  is  regarded  as  a  whole. 

Article  31.  Proof  of  the  destination  specified  in  Article  30  is  complete  in  the 
following  cases : 

(1)  When  the  goods  are  documented  for  discharge  in  an  enemy  port,  or  for 
delivery  to  the  armed  forces  of  the  enemy. 

(2)  When  the  vessel  is  to  call  at  enemy  ports  only,  or  when  she  is  to  touch 
at  an  enemy  port  or  meet  the  armed  forces  of  the  enemy  before  reaching  the 
neutral  port  for  which  the  goods  in  question  are  documented. 

As  has  been  said,  the  obligation  of  proving  that  the  contraband 
goods  really  have  the  destination  specified  in  Article  30  rests  with  the 
captor.  In  certain  cases  proof  of  the  destination  specified  in  Article 
31  is  conclusive;  that  is  to  say,  the  proof  may  not  be  rebutted. 

First  case. — The  goods  are  documented  for  discharge  in  an  enemy 
port;  that  is  to  say,  according  to  the  ship's  papers  referring  to  those 
goods,  they  are  to  be  discharged  there.  In  this  case  there  is  a  real 
admission  of  enemy  destination  on  the  part  of  the  interested  parties 
themselves. 

Second  case. — The  vessel  is  to  touch  at  enemy  ports  only,  or  she  is 
to  touch  at  an  enemy  port  before  reaching  the  neutral  port  for  which 
the  goods  are  documented,  so  that  although  these  goods,  according 
to  the  papers  referring  to  them,  are  to  be  discharged  in  a  neutral  port, 
the  vessel  carrying  them  is  to  touch  at  an  enemy  port  before  reaching 
that  neutral  port.  They  will  be  liable  to  capture,  and  the  possibility  of 
proving  that  their  neutral  destination  is  real  and  in  accordance  with 
the  intentions  of  the  parties  interested  is  not  admitted.  The  fact  that 
before  reaching  that  destination  the  vessel  will  touch  at  an  enemy  port 
would   occasion  too   great  a   risk    for  the   belligerent   whose  cruiser 


154  NAVAL  CONFERENCE  AT  LONDON 

searches  the  vessel.  Even  without  assuming  that  there  is  intentional 
fraud,  there  might  be  a  strong  temptation  for  the  master  of  the  mer- 
chant vessel  to  discharge  the  contraband,  for  which  he  would  get  a 
good  price,  and  for  the  local  authorities  to  requisition  the  goods. 

The  same  case  arises  where  the  vessel,  before  reaching  the  neutral 
port,  is  to  join  the  armed  forces  of  the  enemy. 

For  the  sake  of  simplicity,  the  provision  only  speaks  of  an  enemy 
port,  but  it  is  understood  that  a  port  occupied  by  the  enemy  must  be 
regarded  as  an  enemy  port,  as  follows  from  the  general  rule  in 
Article  30. 

Article  32.  Where  a  vessel  is  carrying  absolute  contraband,  her  papers  are 
conclusive  proof  as  to  the  voyage  on  which  she  is  engaged,  unless  she  is  found 
clearly  out  of  the  course  indicated  by  her  papers  and  unable  to  give  adequate 
reasons  to  justify  such  deviation. 

The  papers  therefore  are  conclusive  proof  of  the  course  of  the  vessel, 
unless  she  is  encountered  in  circumstances  which  show  that  their  state- 
ments are  not  to  be  trusted.  See  also  the  explanations  given  as  regards 
Article  35. 

Article  33.  Conditional  contraband  is  liable  to  capture  if  it  is  shown  to  be 
destined  for  the  use  of  the  armed  forces  or  of  a  government  department  of  the 
enemy  State,  unless  in  this  latter  case  the  circumstances  show  that  the  goods 
can  not  in  fact  be  used  for  the  purposes  of  the  war  in  progress.  This  latter 
exception  does  not  apply  to  a  consignment  coming  under  Article  24  (4). 

The  rules  for  conditional  contraband  differ  from  those  laid  down  for 
absolute  contraband  in  two  respects :  ( 1 )  There  is  no  question  of 
destination  for  the  enemy  in  general,  but  of  destination  for  the  use 
of  his  armed  forces  or  government  departments;  (2)  the  doctrine  of 
continuous  voyage  is  excluded.  Articles  33  and  34  refer  to  the  first 
and  Article  35  to  the  second  principle. 

The  articles  included  in  the  list  of  conditional  contraband  may  serve 
for  peaceful  uses  as  well  as  for  hostile  purposes.  If  from  the  circum- 
stances the  peaceful  purpose  is  clear,  their  capture  is  not  justified;  it  is 
otherwise  if  a  hostile  purpose  is  to  be  assumed,  as,  for  instance,  in  the 
case  of  foodstuffs  destined  for  an  enemy  army  or  fleet,  or  of  coal 
destined  for  an  enemy  fleet.  In  such  a  case  there  is  clearly  no  room 
for  doubt.  But  what  is  the  solution  when  the  articles  are  destined  for 
the  civil  government  departments  of  the  enemy  State?  It  may  be 
money  sent  to  a  government  department  for  use  in  the  payment  of  its 


GENERAL  REPORT  TO  THE   CONFERENCE  155 

official  salaries,  or  rails  sent  to  a  department  of  public  works.  In 
these  cases  there  is  enemy  destination  which  renders  the  goods  liable 
in  the  first  place  to  capture  and  in  the  second  to  condemnation.  The 
reasons  for  this  are  at  once  legal  and  practical.  The  State  is  one, 
although  it  necessarily  acts  through  different  departments.  If  a  civil 
department  may  freely  receive  foodstuffs  or  money,  that  department 
is  not  the  only  gainer,  but  the  entire  State,  including  its  military  ad- 
ministration, gains  also,  since  the  general  resources  of  the  State  are 
thereby  increased.  Further,  the  receipts  of  a  civil  department  may  be 
considered  of  greater  use  to  the  military  administration  and  directly 
assigned  to  the  latter.  Money  or  foodstuffs  really  destined  for  a  civil 
department  may  thus  come  to  be  used  directly  for  the  needs  of  the 
army.  This  possibility,  which  is  always  present,  shows  why  destina- 
tion for  the  departments  of  the  enemy  State  is  assimilated  to  that  for 
its  armed  forces. 

It  is  the  departments  of  the  State  which  are  dependent  on  the  cen- 
tral power  that  are  in  question  and  not  all  the  departments  which  may 
exist  in  the  enemy  State ;  local  and  municipal  bodies,  for  instance,  are 
not  included,  and  articles  destined  for  their  use  would  not  be  contra- 
band. 

War  may  be  waged  in  such  circumstances  that  destination  for  the 
use  of  a  civil  department  can  not  be  suspect,  and  consequently  can  not 
make  goods  contraband.  For  instance,  there  is  a  war  in  Europe,  and 
the  colonies  of  the  belligerent  countries  are  not  in  fact  affected  by  it. 
Foodstuffs  or  other  articles  in  the  list  of  conditional  contraband  des- 
tined for  the  use  of  the  civil  government  of  a  colony  would  not  be 
held  to  be  contraband  of  war,  because  the  considerations  adduced  above 
do  not  apply  to  their  case ;  the  resources  of  the  civil  government  can 
not  be  drawn  on  for  the  needs  of  the  war.  Gold,  silver,  or  paper 
money  are  exceptions,  because  a  sum  of  money  can  easily  be  sent  from 
one  end  of  the  world  to  the  other. 

Article  34.  The  destination  referred  to  in  Article  33  is  presumed  to  exist  if 
the  goods  are  consigned  to  enemy  authorities,  or  to  a  contractor  established  in 
the  enemy  country,  who,  as  a  matter  of  common  knowledge,  supplies  articles  of 
this  kind  to  the  enemy.  A  similar  presumption  arises  if  the  goods  are  con- 
signed to  a  fortified  place  belonging  to  the  enemy,  or  other  place  serving  as  a 
base  for  the  armed  forces  of  the  enemy.  No  such  presumption,  however,  arises 
in  the  case  of  a  merchant  vessel  bound  for  one  of  these  places  if  it  is  sought 
to  prove  that  she  herself  is  contraband. 


156  NAVAL   CONFERENCE  AT  LONDON 

In  cases  where  the  above  presumptions  do  not  arise,  the  destination  is  pre- 
sumed to  be  innocent. 
The  presumptions  set  up  by  this  article  may  be  rebutted. 

Contraband  articles  will  not  usually  be  directly  addressed  to  the 
military  authorities  or  to  the  government  departments  of  the  enemy 
State.  Their  true  destination  will  be  more  or  less  concealed,  and  the 
captor  must  prove  it  in  order  to  justify  their  capture.  But  it  has 
been  thought  reasonable  to  set  up  presumptions  based  on  the  nature 
of  the  person  to  whom,  or  place  for  which,  the  articles  are  destined. 
It  may  be  an  enemy  authority  or  a  trader  established  in  an  enemy 
country  who,  as  a  matter  of  common  knowledge,  supplies  the  enemy 
Government  with  articles  of  the  kind  in  question.  It  may  be  a 
fortified  place  belonging  to  the  enemy  or  a  place  used  as  a  base, 
whether  of  operations  or  of  supply,  for  the  armed  forces  of  the  enemy. 

This  general  presumption  may  not  be  applied  to  the  merchant  ves- 
sel herself  on  her  way  to  a  fortified  place,  though  she  may  in  herself 
be  conditional  contraband,  but  only  if  her  destination  for  the  use 
of  the  armed  forces  or  government  departments  of  the  enemy  State 
is  directly  proved. 

In  the  absence  of  the  above  presumptions,  the  destination  is  pre- 
sumed to  be  innocent.  That  is  the  ordinary  law,  according  to  which 
the  captor  must  prove  the  illicit  character  of  the  goods  which  he  claims 
to  capture. 

Finally,  all  the  presumptions  thus  set  up  in  the  interest  of  the  captor 
or  against  him  may  be  rebutted.  The  national  tribunals,  in  the  first 
place,  and,  in  the  second,  the  international  court,  will  exercise  their 
judgment. 

Article  35.  Conditional  contraband  is  not  liable  to  capture,  except  when 
found  on  board  a  vessel  bound  for  territory  belonging  to  or  occupied  by  the 
enemy,  or  for  the  armed  forces  of  the  enemy,  and  when  it  is  not  to  be  dis- 
charged in  an  intervening  neutral  port. 

The  ship's  papers  are  conclusive  proof  both  as  to  the  voyage  on  which  the 
vessel  is  engaged  and  as  to  the  port  of  discharge  of  the  goods,  unless  she  is 
found  clearly  out  of  the  course  indicated  by  her  papers,  and  unable  to  give  ade- 
quate reasons  to  justify  such  deviation. 

As  has  been  said  above,  the  doctrine  of  continuous  voyage  is  excluded 
for  conditional  contraband,  which  is  only  liable  to  capture  when  it  is 
to  be  discharged  in  an  enemy  port.  As  soon  as  the  goods  are  docu- 
mented for  discharge  in  a  neutral  port  they  can  no  longer  be  contra- 


GENERAL  REPORT  TO  THE   CONFERENCE  157 

band,  and  no  examination  will  be  made  as  to  whether  they  are  to  be 
forwarded  to  the  enemy  by  sea  or  land  from  that  neutral  port.  It  is 
here  that  the  case  of  absolute  contraband  is  essentially  different. 

The  ship's  papers  furnish  complete  proof  as  to  the  voyage  on  which 
the  vessel  is  engaged  and  as  to  the  place  where  the  cargo  is  to  be  dis- 
charged; but  this  would  not  be  so  if  the  vessel  were  encountered 
clearly  out  of  the  course  which  she  should  follow  according  to  her 
papers,  and  unable  to  give  adequate  reasons  to  justify  such  deviation. 

This  rule  as  to  the  proof  furnished  by  the  ship's  papers  is  intended 
to  prevent  claims  frivolously  raised  by  a  cruiser  and  giving  rise  to 
unjustifiable  captures.  It  must  not  be  too  literally  interpreted,  for 
that  would  make  all  frauds  easy.  Thus  it  does  not  hold  good  when 
the  vessel  is  encountered  at  sea  clearly  out  of  the  course  which  she 
ought  to  have  followed,  and  unable  to  justify  such  deviation.  The 
ship's  papers  are  then  in  contradiction  with  the  true  facts  and  lose 
all  value  as  evidence ;  the  cruiser  will  be  free  to  decide  according  to 
the  merits  of  the  case.  In  the  same  way,  a  search  of  the  vessel  may 
reveal  facts  which  irrefutably  prove  that  her  destination  or  the  place 
where  the  goods  are  to  be  discharged  is  incorrectly  entered  in  the 
ship's  papers.  The  commander  of  the  cruiser  is  then  free  to  judge 
of  the  circumstances  and  capture  the  vessel  or  not  according  to  his 
judgment.  To  resume,  the  ship's  papers  are  proof,  unless  facts  show 
their  evidence  to  be  false.  This  qualification  of  the  value  of  the  ship's 
papers  as  proof  seems  self-evident  and  unworthy  of  special  mention. 
The  aim  has  been  not  to  appear  to  weaken  the  force  of  the  general 
rule,  which  forms  a  safeguard  for  neutral  trade. 

It  does  not  follow  that  because  a  single  entry  in  the  ship's  papers 
is  shown  to  be  false  their  evidence  loses  its  value  as  a  whole.  The 
entries  which  can  not  be  proved  false  retain  their  value. 

Article  36.  Notwithstanding  the  provisions  of  Article  35,  conditional  contra- 
band, if  shown  to  have  the  destination  referred  to  in  Article  33,  is  liable  to 
capture  in  cases  where  the  enemy  country  has  no  seaboard. 

The  case  contemplated  is  certainly  rare,  but  has  nevertheless  arisen 
in  recent  wars.  In  the  case  of  absolute  contraband,  there  is  no  diffi- 
culty, since  destination  for  the  enemy  inay  always  be  proved,  what- 
ever the  route  by  which  the  goods  are  sent  (Article  30).  For  con- 
ditional contraband  the  case  is  different,  and  an  exception  must  be 
made  to  the  general  rule  laid  down  in  Article  35,  paragraph  1,  so  as 


158  NAVAL  CONFERENCE  AT  LONDON 

to  allow  the  captor  to  prove  that  the  suspected  goods  really  have  the 
special  destination  referred  to  in  Article  33  without  the  possibility  of 
being  confronted  by  the  objection  that  they  were  to  be  discharged  in 
a  neutral  port. 

Article  37.  A  vessel  carrying  goods  liable  to  capture  as  absolute  or  con- 
ditional contraband  may  be  captured  on  the  high  seas  or  in  the  territorial  waters 
of  the  belligerents  throughout  the  whole  of  her  voyage,  even  if  she  is  to  touch  at 
a  port  of  call  before  reaching  the  hostile  destination. 

The  vessel  may  be  captured  for  contraband  during  the  whole  of 
her  voyage,  provided  that  she  is  in  waters  where  an  act  of  war  is 
lawful.  The  fact  that  she  intends  to  touch  at  a  port  of  call  before 
reaching  the  enemy  destination  does  not  prevent  capture,  provided 
that  destination  in  her  particular  case  is  proved  in  conformity  with 
the  rules  laid  down  in  Articles  30  to  32  for  absolute,  and  in  Articles 
33  to  35  for  conditional  contraband,  subject  to  the  exception  provided 
for  in  Article  36. 

Article  38.  A  vessel  may  not  be  captured  on  the  ground  that  she  has  carried 
contraband  on  a  previous  occasion  if  such  carriage  is  in  point  of  fact  at  an  end. 

A  vessel  is  liable  to  capture  for  carrying  contraband,  but  not  for 
having  done  so. 

Article  39.    Contraband  goods  are  liable  to  condemnation. 
This  presents  no  difficulty. 

Article  40.  A  vessel  carrying  contraband  may  be  condemned  if  the  contra- 
band, reckoned  either  by  value,  weight,  volume,  or  freight,  forms  more  than 
half  the  cargo. 

It  was  universally  admitted  that  in  certain  cases  the  condemnation 
of  the  contraband  is  not  enough,  and  that  the  vessel  herself  should 
also  be  condemned,  but  opinions  differed  as  to  what  these  cases  were. 
It  was  decided  that  the  contraband  must  bear  a  certain  proportion 
to  the  total  cargo.  But  the  question  divides  itself  into  two  parts: 
(1)  What  shall  be  the  proportion?  The  solution  adopted  is  the  mean 
between  those  proposed,  which  varied  from  a  quarter  to  three-quar- 
ters. (2)  How  shall  this  proportion  be  reckoned?  Must  the  contra- 
band form  more  than  half  the  cargo  in  volume,  weight,  value,  or 
freight?  The  adoption  of  a  single  fixed  standard  gives  rise  to  theo- 
retical objections,  and  also  to  practices  intended  to  avoid  condemna- 


GENERAL  REPORT  TO   THE  CONFERENCE  159 

tion  of  the  vessel  in  spite  of  the  importance  of  the  cargo.  If  the 
standard  of  volume  or  weight  is  adopted,  the  master  will  ship  innocent 
goods,  occupying  space,  or  of  weight,  sufficient  to  exceed  the  contra- 
band. A  similar  remark  may  be  made  as  regards  the  standard  of 
value  or  freight.  The  consequence  is  that  in  order  to  justify  con- 
demnation, it  is  enough  that  the  contraband  should  form  more  than 
half  the  cargo  by  any  one  of  the  above  standards.  This  may  seem 
harsh ;  but,  on  the  one  hand,  any  other  system  would  make  fraudulent 
calculations  easy,  and,  on  the  other,  the  condemnation  of  the  vessel 
may  be  said  to  be  justified  when  the  carriage  of  contraband  formed 
an  important  part  of  her  venture — a  statement  which  applies  to  all 
the  cases  specified. 

Article  41.  If  a  vessel  carrying  contraband  is  released,  she  may  be  con- 
demned to  pay  the  costs  and  expenses  incurred  by  the  captor  in  respect  of  the 
proceedings  in  the  national  prize  court  and  the  custody  of  the  ship  and  cargo 
during  the  proceedings. 

It  is  not  just  that,  on  the  one  hand,  the  carriage  of  more  than  a 
certain  proportion  of  contraband  should  involve  the  condemnation  of 
the  vessel,  while  if  the  contraband  forms  less  than  this  proportion, 
it  alone  is  confiscated.  This  often  involves  no  loss  for  the  master, 
the  freight  of  this  contraband  having  been  paid  in  advance.  Does 
this  not  encourage  trade  in  contraband,  and  ought  not  a  certain  pen- 
alty to  be  imposed  for  the  carriage  of  a  proportion  of  contraband  less 
than  that  required  to  entail  condemnation?  A  kind  of  fine  was  pro- 
posed which  should  bear  a  relation  to  the  value  of  the  contraband 
articles.  Objections  of  various  sorts  were  brought  forward  against 
this  proposal,  although  the  principle  of  the  infliction  of  some  kind 
of  pecuniary  loss  for  the  carriage  of  contraband  seemed  justified.  The 
same  object  was  attained  in  another  way  by  providing  that  the  costs 
and  expenses  incurred  by  the  captor  in  respect  of  the  proceedings  in 
the  national  prize  court  and  of  the  custody  of  the  vessel  and  of  her 
cargo  during  the  proceedings  are  to  be  paid  by  the  vessel.  The 
expenses  of  the  custody  of  the  vessel  include  in  this  case  the  keep 
of  the  captured  vessel's  crew.  It  should  be  added  that  the  loss  to  a 
vessel  by  being  taken  to  a  prize  port  and  kept  there  is  the  most  serious 
deterrent  as  regards  the  carriage  of  contraband. 

Article  42.  Goods  wliich  belong  to  the  owner  of  the  contraband  and  are  on 
board  the  same  vessel  are  liable  to  condemnation. 


160  NAVAL  CONFERENCE  AT  LONDON 

The  owner  of  the  contraband  is  punished  in  the  first  place  by  the 
condemnation  of  his  contraband  property ;  and  in  the  second  by  that 
of  the  goods,  even  if  innocent,  which  he  may  possess  on  board  the 
same  vessel. 

Article  43.  If  a  vessel  is  encountered  at  sea  while  unaware  of  the  outbreak 
of  hostilities  or  of  the  declaration  of  contraband  which  applies  to  her  cargo,  the 
contraband  can  not  be  condemned  except  on  payment  of  compensation ;  the  vessel 
herself  and  the  remainder  of  the  cargo  are  not  liable  to  condemnation  or  to  the 
costs  and  expenses  referred  to  in  Article  41.  The  same  rule  applies  if  the 
master,  after  becoming  aware  of  the  outbreak  of  hostilities,  or  of  the  declaration 
of  contraband,  has  had  no  opportunity  of  discharging  the  contraband. 

A  vessel  is  deemed  to  be  aware  of  the  existence  of  a  state  of  war,  or  of  a 
declaration  of  contraband,  if  she  left  a  neutral  port  subsequently  to  the  notifica- 
tion to  the  Power  to  which  such  port  belongs  of  the  outbreak  of  hostilities,  or 
of  the  declaration  of  contraband,  provided  such  notification  was  made  in  suffi- 
cient time.  A  vessel  is  also  deemed  to  be  aware  of  the  existence  of  a  state  of 
war  if  she  left  an  enemy  port  after  the  outbreak  of  hostilities. 

This  provision  is  intended  to  spare  neutrals  who  might  in  fact  be 
carrying  contraband,  but  against  whom  no  charge  could  be  made. 
This  may  arise  in  two  cases :  The  first  is  that  in  which  they  are 
unaware  of  the  outbreak  of  hostilities;  the  second  is  that  in  which, 
though  aware  of  this,  they  do  not  know  of  the  declaration  of  con- 
traband made  by  a  belligerent,  in  accordance  with  Articles  23  and  25, 
which  is,  as  it  happens,  the  one  applicable  to  the  whole  or  a  part  of 
the  cargo.  It  would  be  unjust  to  capture  the  ship  and  condemn  the 
contraband ;  on  the  other  hand,  the  cruiser  can  not  be  obligated  to  let 
go  on  to  the  enemy  goods  suitable  for  use  in  the  war  of  which  he  may 
stand  in  urgent  need.  These  opposing  interests  are  reconciled  by 
making  condemnation  conditional  on  the  payment  of  compensation. 
(See  the  convention  of  the  18th  October,  1907,  on  the  rules  for  enemy 
merchant  vessels  on  the  outbreak  of  hostilities,  which  expresses  a 
similar  idea.) 

Article  44.  A  vessel  which  has  been  stopped  on  the  ground  that  she  is  carry- 
ing contraband,  and  which  is  not  liable  to  condemnation  on  account  of  the  pro- 
portion of  contraband  on  board,  may,  when  the  circumstances  permit,  be  al- 
lowed to  continue  her  voyage  if  the  master  is  willing  to  hand  over  the  contra- 
band to  the  belligerent  war-ship. 

The  delivery  of  the  contraband  must  be  entered  by  the  captor  on  the  log-book 
of  the  vessel  stopped,  and  the  master  must  give  the  captor  duly  certified  copies 
of  all  relevant  papers. 

The  captor  is  at  liberty  to  destroy  the  contraband  that  has  been  handed  over 
to  him  under  these  conditions. 


GENERAL  REPORT  TO  THE  CONFERENCE  161 

A  neutral  vessel  is  stopped  for  carrying  contraband.  She  is  not 
liable  to  condemnation,  because  the  contraband  does  not  reach  the 
proportion  specified  in  Article  40.  She  can,  nevertheless,  be  taken  to 
a  prize  port  for  judgment  to  be  passed  on  the  contraband.  This 
right  of  the  captor  appears  too  wide  in  certain  cases,  if  the  importance 
of  the  contraband,  possibly  slight  (for  instance,  a  case  of  guns  or 
revolvers),  is  compared  with  the  heavy  loss  incurred  by  the  vessel 
by  being  thus  turned  out  of  her  course  and  detained  during  the  time 
taken  up  by  the  proceedings.  The  question  has,  therefore,  been  asked 
whether  the  right  of  the  neutral  vessel  to  continue  her  voyage  might 
not  be  admitted  if  the  contraband  articles  were  handed  over  to  the 
captor,  who,  on  his  part,  might  only  refuse  to  receive  them  for  suffi- 
cient reasons,  for  instance,  the  rough  state  of  the  sea,  which  would 
make  transshipment  difficult  or  impossible,  well-founded  suspicions  as 
to  the  amount  of  contraband  which  the  merchant  vessel  is  really 
carrying,  the  difficulty  of  stowing  the  articles  on  board  the  war-ship, 
etc.  This  proposal  did  not  gain  sufficient  support.  It  was  alleged 
to  be  impossible  to  impose  such  an  obligation  on  the  cruiser,  for 
which  this  handing  over  of  goods  would  almost  always  have  draw- 
backs. If,  by  chance,  it  has  none,  the  cruiser  will  not  refuse  it, 
because  she  herself  will  gain  by  not  being  turned  out  of  her  course  by 
having  to  take  the  vessel  to  a  port.  The  idea  of  an  obligation  having 
thus  been  excluded,  it  was  decided  to  provide  for  the  voluntary  hand- 
ing over  the  contraband,  which,  it  is  hoped,  will  be  carried  out  when- 
ever possible,  to  the  great  advantage  of  both  parties.  The  formalities 
provided  for  are  very  simple  and  need  no  explanation. 

There  must  be  a  judgment  of  a  prize  court  as  regards  the  goods 
thus  handed  over.  For  this  purpose  the  captor  must  be  furnished 
with  the  necessary'  papers.  It  may  be  supposed  that  there  might  be 
doubt  as  to  the  character  of  certain  articles  which  the  cruiser  claims 
as  contraband ;  the  master  of  the  merchant  vessel  contests  this  claim, 
but  prefers  to  deliver  them  up  so  as  to  be  at  liberty  to  continue  his 
voyage.  This  is  merely  a  capture  which  has  to  be  confirmed  by  the 
prize  court. 

The  contraband  delivered  up  by  the  merchant  vessel  may  hamper 
the  cruiser,  which  must  be  left  free  to  destroy  it  at  the  moment  of 
handing  over,  or  later. 


162  NAVAL  CONFERENCE  AT  LONDON 

Chapter  III — Unneutral  Service 

In  a  general  way,  it  may  be  said  that  the  merchant  vessel  which 
violates  neutrahty,  whether  by  carrying  contraband  of  war  or  by 
breaking  blockade,  affords  aid  to  the  enemy,  and  it  is  on  this  ground 
that  the  belligerent  whom  she  injures  by  her  acts  is  justified  in  inflict- 
ing on  her  certain  losses.  But  there  are  cases  where  such  unneutral 
service  bears  a  particularly  distinctive  character,  and  for  such  cases 
it  has  been  thought  necessary  to  make  special  provision.  They  have 
been  divided  into  two  classes  according  to  the  gravity  of  the  act  of 
which  the  neutral  vessel  is  accused. 

In  the  cases  included  in  the  first  class  (Article  45),  the  vessel  is  con- 
demned, and  receives  the  treatment  of  a  vessel  subject  to  condemna- 
tion for  carrying  contraband.  This  means  that  the  vessel  does  not 
lose  her  neutral  character  and  has  a  full  claim  to  the  rights  enjoyed 
by  neutral  vessels ;  for  instance,  she  may  not  be  destroyed  by  the 
captor  except  under  the  conditions  laid  down  for  neutral  vessels 
(Articles  48  et  seq.)  ;  the  rule  that  the  flag  covers  the  goods  applies  to 
goods  she  carries  on  board. 

In  the  more  serious  cases  which  belong  to  the  second  class  (Article 
46),  the  vessel  is  again  condemned;  but  further,  she  is  treated  not  only 
as  a  vessel  subject  to  condemnation  for  carrying  contraband,  but  as 
an  enemy  merchant  vessel,  which  treatment  entails  certain  conse- 
quences. The  rules  governing  the  destruction  of  neutral  prizes  does 
not  apply  to  the  vessel,  and  as  she  has  become  an  enemy  vessel,  it  is 
no  longer  the  second  but  the  third  rule  of  the  Declaration  of  Paris 
which  is  applicable.  The  goods  on  board  will  be  presumed  to  be 
enemy  goods ;  neutrals  will  have  the  right  to  claim  their  property  on 
establishing  their  neutrality  (Article  59).  It  would,  however,  be  going 
too  far  to  say  that  the  original  neutral  character  of  the  vessel  is  com- 
pletely lost,  so  that  she  should  be  treated  as  though  she  had  always 
been  an  enemy  vessel.  The  vessel  may  plead  that  the  allegation  made 
against  her  has  no  foundation  in  fact,  that  the  act  of  which  she  is 
accused  has  not  the  character  of  unneutral  service.  She  has,  therefore, 
the  right  of  appeal  to  the  international  court  in  virtue  of  the  pro- 
visions which  protect  neutral  property. 

Article  45.  A  neutral  vessel  will  be  condemned  and  will,  in  a  general  way, 
receive  the  same  treatment  as  a  neutral  vessel  liable  to  condemnation  for  carriage 
of  contraband — 


GENERAL  REPORT  TO  THE   CONFERENCE  163 

(1)  If  she  is  on  a.  voyage  specially  undertaken  with  a  view  to  the  transport  of 
individual  passengers  who  are  embodied  in  the  armed  forces  of  the  enemy,  or 
with  a  view  to  the  transmission  of  intelligence  in  the  interest  of  the  enemy. 

(2)  If,  to  the  knowledge  of  either  the  owner,  the  charterer,  or  the  master, 
she  is  transporting  a  military  detachment  of  the  enemy,  or  one  or  more 
persons  who,  in  the  course  of  the  voyage,  directly  assist  the  operations  of  the 
enemy. 

In  the  cases  specified  under  the  above  heads,  goods  belonging  to  the  owner  of 
the  vessel  are  likewise  liable  to  condemnation. 

The  provisions  of  the  present  article  do  not  apply  if  the  vessel  is  encountered 
at  sea  while  unaware  of  the  outbreak  of  hostilities,  or  if  the  master,  after  be- 
coming aware  of  the  outbreak  of  hostilities,  has  had  no  opportunity  of  dis- 
embarking the  passengers.  The  vessel  is  deemed  to  be  aware  of  the  existence 
of  a  state  of  war  if  she  left  an  enemy  port  subsequently  to  the  outbreak  of 
hostilities  or  a  neutral  port  subsequently  to  the  notification  of  the  outbreak  of 
hostilities  to  the  Power  to  which  such  port  belongs,  provided  that  such  notifi- 
cation was  made  in  sufficient  time. 

The  first  case  supposes  passengers  traveling  as  individuals ;  the 
case  of  a  military  detachment  is  dealt  with  hereafter.  The  case  is 
that  of  individuals  embodied  in  the  armed  military  or  naval  forces  of 
the  enemy.  There  was  some  doubt  as  to  the  meaning  of  this  word. 
Does  it  include  those  individuals  only  who  are  summoned  to  serve 
in  virtue  of  the  law  of  their  country  and  who  have  really  joined  the 
corps  to  which  they  are  to  belong?  Or  does  it  also  include  such  indi- 
viduals from  the  moment  when  they  are  summoned  and  before  they 
join  that  corps?  The  question  is  of  great  practical  importance.  Sup- 
posing the  case  is  one  of  individuals  who  are  natives  of  a  continental 
European  country  and  are  settled  in  America;  these  individuals  have 
military  obligations  toward  their  country  of  origin;  they  have,  for 
instance,  to  belong  to  the  reserve  of  the  active  army  of  that  country. 
Their  country  is  at  war  and  they  sail  to  perform  their  service.  Shall 
they  be  considered  as  embodied  in  the  sense  of  the  provision  which 
we  are  discussing?  If  we  adjudged  by  the  municipal  law  of  certain 
countries  we  might  argue  that  they  should  be  so  considered.  But, 
apart  from  reasons  of  pure  law,  the  contrary  opinion  has  seemed  more 
in  accordance  with  practical  necessity  and  has  been  accepted  by  all 
in  a  spirit  of  conciliation.  It  would  be  difficult,  perhaps  even  impos- 
sible, without  having  recourse  to  vexatious  measures  to  which  neutral 
Governments  would  not  willingly  submit,  to  pick  out  among  the  passen- 
gers in  a  vessel  those  who  are  bound  to  perform  military  service  and 
are  on  their  way  to  do  so. 


164  NAVAL   CONFERENCE  AT  LONDON 

The  transmission  of  intelligence  in  the  interest  of  the  enemy  is  to 
be  treated  in  the  same  way  as  the  carriage  of  passengers  embodied 
in  his  armed  force.  The  reference  to  a  vessel  especially  undertaking 
a  voyage  is  intended  to  show  that  her  usual  service  is  not  meant.  She 
has  been  turned  from  her  course ;  she  has  touched  at  a  port  which 
she  does  not  ordinarily  visit  in  order  to  embark  the  passengers  in 
question.  She  need  not  be  exclusively  devoted  to  the  service  of  the 
enemy;  that  case  would  come  into  the  second  class  (Article  56  (4)  ). 

In  the  two  cases  just  mentioned  the  vessel  has  performed  but  a 
single  service ;  she  has  been  employed  to  carry  certain  people,  or  to 
transmit  certain  intelligence ;  she  is  not  continuously  in  the  service  of 
the  enemy.  In  consequence  she  may  be  captured  during  the  voyage 
on  which  she  is  performing  the  service  which  she  has  to  render. 
Once  that  voyage  is  finished,  all  is  over,  in  the  sense  that  she  may  not 
be  captured  for  having  rendered  the  service  in  question.  The  prin- 
ciple is  the  same  as  that  recognized  in  the  case  of  contraband  (Ar- 
ticle 38). 

The  se'cond  case  also  falls  under  two  heads. 

There  is,  first,  the  carriage  of  a  military  detachment  of  the  enemy, 
or  that  of  one  or  more  persons  who  during  the  voyage  directly  assist 
his  operations,  for  instance,  by  signaling.  If  these  people  are  soldiers 
or  sailors  in  uniform  there  is  no  difficulty,  the  vessel  is  clearly  liable 
for  condemnation.  If  they  are  soldiers  or  sailors  in  mufti,  who  might 
be  mistaken  for  ordinary  passengers,  knowledge  on  the  part  of  the 
master  or  owner  is  required,  the  charterer  being  assimilated  to  the 
latter.  The  rule  is  the  same  in  the  case  of  persons  directly  assisting 
the  enemy  during  the  voyage. 

In  these  cases,  if  the  vessel  is  condemned  for  unneutral  service,  the 
goods  belonging  to  her  owner  are  also  liable  to  condemnation. 

These  provisions  assume  that  the  state  of  war  was  known  to  the 
vessel  engaged  in  the  operations  specified ;  such  knowledge  is  the 
reason  and  justification  of  her  condemnation.  The  position  is  alto- 
gether different  when  the  vessel  is  unaware  of  the  outbreak  of  hostili- 
ties, so  that  she  undertakes  the  service  in  ordinary  circumstances. 
She  may  have  learned  of  the  outbreak  of  hostilities  while  at  sea,  but 
have  had  no  chance  of  landing  the  persons  whom  she  was  carrying. 
Condemnation  would  then  be  unjust,  and  the  equitable  rule  adopted 
is  in  accordance  with  the  provisions  already  accepted  in  other  matters. 
If  a  vessel  has  left  an  enemy  port  subsequently  to  the  outbreak  of 


GENERAL  REPORT  TO  THE   CONFERENCE  165 

hostilities,  or  a  neutral  port  after  that  outbreak  has  been  notified  to 
the  Power  to  whom  such  port  belongs,  her  knowledge  of  the  existence 
of  a  state  of  war  will  be  presumed. 

The  question  here  is  merely  one  of  preventing  the  condemnation  of 
the  vessel.  The  persons  found  on  board  her  who  belong  to  the  armed 
forces  of  the  enemy  may  be  made  prisoners  of  war  by  the  cruiser. 

Article  46.  A  neutral  vessel  is  liable  to  condemnation  and,  in  a  general  way, 
to  the  same  treatment  as  would  be  applicable  to  her  if  she  were  an  enemy  mer- 
chant vessel — 

(1)  If  she  takes  a  direct  part  in  the  hostilities. 

(2)  If  she  is  under  the  orders  or  control  of  an  agent  placed  on  board  by  the 
enemy  Government. 

(3)  If  she  is  in  the  exclusive  employment  of  the  enemy  Government. 

(4)  If  she  is  exclusively  engaged  at  the  time  either  in  the  transport  of  enemy 
troops  or  in  the  transmission  of  intelligence  in  the  interest  of  the  enemy. 

In  the  cases  covered  by  the  present  article,  goods  belonging  to  the  owner  of 
the  vessel  are  likewise  liable  to  condemnation. 

The  cases  here  contemplated  are  more  serious  than  those  in  Article 
45,  which  justifies  the  severer  treatment  inflicted  on  the  vessel,  as 
explained  above. 

First  case. — The  vessel  takes  a  direct  part  in  the  hostilities.  This 
may  take  different  forms.  It  is  needless  to  say  that,  in  an  armed  con- 
flict, the  vessel  takes  all  the  risks  incidental  thereto.  We  suppose 
her  to  have  fallen  into  the  power  of  the  enemy  whom  she  was  fight- 
ing, and  who  is  entitled  to  treat  her  as  an  enemy  merchant  vessel. 

Second  case. — The  vessel  is  under  the  orders  or  control  of  an  agent 
placed  on  board  by  the  enemy  Government.  His  presence  marks 
the  relation  in  which  she  stands  to  the  enemy.  In  other  circum- 
stances the  vessel  may  also  have  relations  with  the  enemy,  but  to  be 
subject  to  condemnation  she  must  come  under  the  third  liead. 

Third  case. — The  whole  vessel  is  chartered  by  the  enemy  Govern- 
ment, and  is  therefore  entirely  at  its  disposal ;  it  can  use  her  for 
different  purposes  more  or  less  directly  connected  with  the  war,  notably, 
as  a  transport ;  such  is  the  position  of  colliers  which  accompany  a 
belligerent  fleet.  There  will  often  be  a  charter  party  between  the 
belligerent  Government  and  the  owner  or  master  of  the  vessel,  but 
all  that  is  required  is  proof,  and  the  fact  that  the  whole  vessel  has, 
in  fact,  been  chartered  is  enough,  in  whatever  way  it  may  be  established. 

Fourth  case. — The  vessel  is  at  the  time  exclusively  devoted  to  the 
carriage  of  enemy  troops  or  to  the  transmission  of  intelligence  in  the 


166  NAVAL  CONFERENCE  AT  LONDON 

enemy's  interest.  The  case  is  different  from  those  dealt  with  by 
Article  45,  and  the  question  is  one  of  a  service  to  which  the  ship  is 
permanently  devoted.  The  decision  accordingly  is  that,  so  long  as 
such  service  lasts,  the  vessel  is  liable  to  capture,  even  if,  at  the  moment 
when  an  enemy  cruiser  searches  her,  she  is  engaged  neither  in  the 
transport  of  troops  nor  in  the  transmission  of  intelligence. 

As  in  the  cases  in  Article  45  and  for  the  same  reasons,  goods  found 
on  board  belonging  to  the  owner  of  the  vessel  are  also  liable  to  con- 
demnation. 

It  was  proposed  to  treat  as  an  enemy  merchant  vessel  a  neutral 
vessel  making,  at  the  time,  and  with  the  sanction  of  the  enemy  Gov- 
ernment, a  voyage  which  she  has  only  been  permitted  to  make  sub- 
sequently to  the  outbreak  of  hostilities  or  during  the  two  preceding 
months.  This  rule  would  be  enforced  notably  on  neutral  merchant 
vessels  admitted  by  a  belligerent  to  a  service  reserved  in  time  of  peace 
to  the  national  marine  of  that  belligerent — for  instance,  to  the  coast- 
ing trade.  Several  delegations  formally  rejected  this  proposal,  so  that 
the  question  thus  raised  remains  an  open  one. 

Article  47.  Any  individual  embodied  in  the  armed  forces  of  the  enemy  who  is 
found  on  board  a  neutral  merchant  vessel  may  be  made  a  prisoner  of  war,  even 
though  there  be  no  ground  for  the  capture  of  the  vessel. 

Individuals  embodied  in  the  armed  military  or  naval  forces  of  a 
belligerent  may  be  on  board  a  neutral  merchant  vessel  when  she  is 
searched.  If  the  vessel  is  subject  to  condemnation,  the  cruiser  will 
capture  her  and  take  her  to  one  of  her  own  ports  with  the  persons  on 
board.  Clearly  the  soldiers  or  sailors  of  the  enemy  State  will  not  be 
set  free,  but  will  be  treated  as  prisoners  of  war.  Perhaps  the  case 
will  not  be  one  for  the  capture  of  the  ship — for  instance,  because  the 
master  was  unaware  of  the  status  of  an  individual  who  had  come 
on  board  as  an  ordinary  passenger.  Must  the  soldier  or  soldiers  on 
board  the  vessel  be  set  free?  That  does  not  appear  admissible.  The 
belligerent  cruiser  can  not  be  compelled  to  set  free  active  enemies 
who  are  physically  in  her  power  and  are  more  dangerous  than  this  or 
that  contraband  article.  She  must  naturally  proceed  with  great  dis- 
cretion, and  must  act  on  her  own  responsibility  in  requiring  the  sur- 
render of  these  individuals,  but  the  right  to  do  so  is  hers ;  it  has  there- 
fore been  thought  necessary  to  explain  the  point. 


GENERAL  REPORT  TO   TPIE   CONFERENCE  167 

Chapter  IV — Destruction  of  Neutral  Prizes 

The  destruction  of  neutral  prizes  was  a  subject  comprised  in  the 
program  of  the  Second  Peace  Conference,  and  on  that  occasion  no 
settlement  was  reached.  It  reappeared  in  the  program  of  the  present 
Conference,  and  this  time  agreement  has  been  found  possible.  Such 
a  result,  which  bears  witness  to  the  sincere  desire  of  all  parties  to 
arrive  at  an  understanding  is  a  matter  for  congratulation.  It  has  been 
shown  once  more  that  conflicting  hard-and-fast  rules  do  not  always 
correspond  to  things  as  they  are,  and  that  if  there  be  readiness  to 
descend  to  particulars,  and  to  arrive  at  the  precise  way  in  which  the 
rules  have  been  applied,  it  will  often  be  found  that  the  actual  prac- 
tice is  very  much  the  same,  although  the  doctrines  professed  appear 
to  be  entirely  in  conflict.  To  enable  two  parties  to  agree,  it  is  first 
of  all  necessary  that  they  should  understand  each  other,  and  this  fre- 
quently is  not  the  case.  Thus  it  has  been  found  that  those  who  de- 
clared for  the  right  to  destroy  neutral  prizes  never  claimed  to  use  this 
right  wantonly  or  at  every  opportunity,  but  only  by  way  of  exception ; 
while,  on  the  other  hand,  those  who  maintained  the  principle  that 
destruction  is  forbidden,  admitted  that  the  principle  must  give  way  in 
certain  exceptional  cases.  It  therefore  became  a  question  of  reaching 
an  understanding  with  regard  to  those  exceptional  cases  to  which, 
according  to  both  views,  the  right  to  destroy  should  be  confined.  But 
this  was  not  all ;  there  was  need  for  some  guaranty  against  abuse  in 
the  exercise  of  this  right ;  the  possibility  of  arbitrary  action  in  deter- 
mining these  exceptional  cases  must  be  limited  by  throwing  some  real 
responsibility  upon  the  captor.  It  was  at  this  stage  that  a  new  idea 
was  introduced  into  the  discussion,  thanks  to  which  it  was  possible 
to  arrive  at  an  agreement.  The  possibility  of  intervention  by  a  court 
of  justice  will  make  the  captor  reflect  before  he  acts,  and  at  the  same 
time  secure  reparation  in  cases  where  there  was  no  reason  for  the 
destruction. 

Such  is  the  general  spirit  of  the  provisions  of  this  chapter. 

Article  48.  A  neutral  vessel  which  has  been  captured  may  not  be  destroyed  by 
the  captor ;  she  must  be  taken  into  such  port  as  is  proper  for  the  determination 
there  of  all  questions  concerning  the  validity  of  the  prize. 

The  general  principle  is  very  simple.  A  neutral  vessel  which  has 
been  seized  may  not  be  destroyed  by  the  captor ;  so  much  may  be 


168  NAVAL  CONFERENCE  AT  LONDON 

admitted  by  everyone,  whatever  view  is  taken  as  to  the  effect  pro- 
duced by  the  capture.  The  vessel  must  be  taken  into  a  port  for  the 
determination  there  as  to  the  vaHdity  of  the  prize.  A  prize  crew 
will  be  put  on  board  or  not,  according  to  circumstances. 

Article  49.  As  an  exception,  a  neutral  vessel  which  has  been  captured  by  a 
belligerent  war-ship,  and  which  would  be  liable  to  condemnation,  may  be  de- 
stroyed if  the  observance  of  Article  48  would  involve  danger  to  the  safety  of  the 
war-ship  or  to  the  success  of  the  operations  in  which  she  is  engaged  at  the  time. 

The  first  condition  necessary  to  justify  the  destruction  of  the  cap- 
tured vessel  is  that  she  should  be  liable  to  condemnation  upon  the 
facts  of  the  case.  If  the  captor  can  not  even  hope  to  obtain  the  con- 
demnation of  the  vessel,  how  can  he  lay  claim  to  the  right  to  destroy 
her? 

The  second  condition  is  that  the  observance  of  the  general  principle 
would  involve  danger  to  the  safety  of  the  war-ship  or  to  the  success  of 
the  operations  in  which  she  is  engaged  at  the  time.  This  is  what  was 
finally  agreed  upon  after  various  solutions  had  been  tried.  It  was 
understood  that  the  phrase  compromcttre  la  seciirite  was  synonymous 
with  mettre  en  danger  le  navire,  and  might  be  translated  into  English 
by:  involve  danger.  It  is,  of  course,  the  situation  at  the  moment 
when  the  destruction  takes  place  which  must  be  considered  in  order 
to  decide  whether  the  conditions  are  or  are  not  fulfilled.  For  a  danger 
which  did  not  exist  at  the  actual  moment  of  the  capture  may  have 
appeared  some  time  afterwards. 

Article  50.  Before  the  vessel  is  destroyed  all  persons  on  board  must  be  placed 
in  safety,  and  all  the  ship's  papers  and  other  documents  which  the  parties  in- 
terested consider  relevant  for  the  purpose  of  deciding  on  the  validity  of  the 
capture  must  be  taken  on  board  the  war-ship. 

This  provision  lays  down  the  precautions  to  be  taken  in  the  inter- 
ests of  the  persons  on  board  and  of  the  administration  of  justice. 

Article  51.  A  captor  who  has  destroyed  a  neutral  vessel  must,  prior  to  any 
decision  respecting  the  validity  of  the  prize,  establish  that  he  only  acted  in  the 
the  face  of  an  exceptional  necessity,  of  the  nature  contemplated  in  Article  49.  If 
he  fails  to  do  this,  he  must  compensate  the  parties  interested,  and  no  examina- 
tion shall  be  made  of  the  question  whether  the  capture  was  valid  or  not. 

This  claim  gives  a  guaranty  against  the  arbitrary  destruction  of 
prizes  by  throwing  a  real  responsibility  upon  the  captor  who  has  car- 
ried out  the  destruction.     The  result  is  that  before  any  decision  is 


GENERAL  REPORT  TO   THE   CONFERENCE  169 

given  respecting  the  validity  of  the  prize,  the  captor  must  prove  that 
the  situation  he  was  in  was  really  one  which  fell  under  the  head  of  the 
exceptional  cases  contemplated.  This  must  be  proved  in  proceedings 
to  which  the  neutral  is  a  party,  and  if  the  latter  is  not  satisfied  with 
the  decision  of  the  national  prize  court  he  may  take  his  case  to  the 
international  court.  Proof  to  the  above  effect  is,  therefore,  a  condition 
precedent  which  the  captor  must  fulfill.  If  he  fails  to  do  this,  he  must 
compensate  the  parties  interested  in  the  vessel  and  the  cargo,  and  the 
question  whether  the  capture  was  valid  or  not  will  not  be  gone  into. 
In  this  way  a  real  sanction  is  provided  in  respect  of  the  obligation  not 
to  destroy  a  prize  except  in  particular  cases,  the  sanction  taking  the 
form  of  a  fine  inflicted  on  the  captor.  If,  on  the  other  hand,  this 
proof  is  given,  the  prize  procedure  follows  the  usual  course;  if  the 
prize  is  declared  valid,  no  compensation  is  due ;  if  it  is  declared  void, 
the  parties  interested  have  a  right  to  be  compensated.  Resort  to  the 
international  court  can  only  be  made  after  the  decision  of  the  prize 
court  has  been  given  on  the  whole  matter,  and  not  immediately  after 
the  preliminary  question  has  been  decided. 

Article  52.  If  the  capture  of  a  neutral  vessel  is  subsequently  held  to  be  invalid, 
though  the  act  of  destruction  has  been  held  to  have  been  justifiable,  the  captor 
must  pay  compensation  to  the  parties  interested,  in  place  of  the  restitution  to 
which  they  v^fould  have  been  entitled. 

Article  53.  If  neutral  goods  not  liable  to  condemnation  have  been  destroyed 
with  the  vessel,  the  owner  of  such  goods  is  entitled  to  compensation. 

Supposing  a  vessel  which  has  been  destroyed  carried  neutral  goods 
not  liable  to  condemnation ;  the  owner  of  such  goods  has,  in  every 
case,  a  right  to  compensation ;  that  is,  without  there  being  occasion 
to  distinguish  between  cases  where  the  destruction  was  or  vvas  not 
justified.  This  is  equitable  and  a  further  guaranty  against  arbitrary 
destruction. 

Article  54.  The  captor  has  the  right  to  demand  the  handing  over,  or  to  pro- 
ceed himself  to  the  destruction,  of  any  goods  liable  to  condemnation  found  on 
board  a  vessel  not  herself  liable  to  condemnation,  provided  that  the  circum- 
stances are  such  as  would,  under  Article  49,  justify  the  destruction  of  a  vessel 
herself  liable  to  condemnation.  The  captor  must  enter  the  goods  surrendered  or 
destroyed  in  the  log-book  of  the  vessel  stopped,  and  must  obtain  duly  certified 
copies  of  all  relevant  papers.  When  the  goods  have  been  handed  over  or 
destroyed  and  the  formalities  duly  carried  out,  the  master  must  be  allowed 
to  continue  his  voyage. 

The  provisions  of  Articles  51  and  52  respecting  the  obligations  of  a  captor 
who  has  destroyed  a  neutral  vessel  are  applicable. 


170  NAVAL  CONFERENCE  AT  LONDON 

A  cruiser  encounters  a  neutral  merchant  vessel  carrying  contraband 
in  a  proportion  less  than  that  specified  in  Article  40.  The  captain 
may  put  a  prize  crew  on  board  the  vessel  and  take  her  into  a  port  for 
adjudication.  He  may,  in  conformity  vv^ith  the  provisions  of  Article 
44,  agree  to  the  handing  over  of  the  contraband  if  offered  by  the 
vessel  stopped.  But  what  is  to  happen  if  neither  of  these  solutions 
is  reached?  The  vessel  stopped  does  not  offer  to  hand  over  the  con- 
traband, and  the  cruiser  is  not  in  a  position  to  take  the  vessel  into  a 
national  port.  Is  the  cruiser  obliged  to  let  the  neutral  vessel  go  with 
the  contraband  on  board  ?  To  require  this  seemed  going  too  far,  at 
least  in  certain  exceptional  circumstances.  These  circumstances  are 
in  fact  the  same  as  would  have  justified  the  destruction  of  the  vessel, 
had  she  been  liable  to  condemnation.  In  such  a  case,  the  cruiser  may 
demand  the  handing  over,  or  proceed  to  the  destruction,  of  the  goods, 
liable  to  condemnation.  The  reasons  for  which  the  right  to  destroy 
the  vessel  has  been  recognized  may  justify  the  destruction  of  the  con- 
traband goods,  the  more  so  as  the  considerations  of  humanity  which 
can  be  adduced  against  the  destruction  of  a  vessel  do  not  in  this  case 
apply.  Against  arbitrary  demands  by  the  cruiser  there  are  the  same 
guaranties  as  those  which  made  it  possible  to  recognize  the  right  to 
destroy  the  vessel.  The  captor  must,  as  a  preliminary,  prove  that  he 
was  really  faced  by  the  exceptional  circumstances  specified;  failing 
this,  he  is  condemned  to  pay  the  value  of  the  goods  handed  over  or 
destroyed,  and  the  question  whether  they  were  contraband  or  not  will 
not  be  gone  into. 

The  article  prescribes  certain  formalities  which  are  necessary  to 
establish  the  facts  of  the  case  and  to  enable  the  prize  court  to 
adjudicate. 

Of  course,  when  once  the  goods  have  been  handed  over  or  destroyed 
and  the  formalities  carried  out,  the  vessel  which  has  been  stopped 
must  be  left  free  to  continue  her  voyage. 

Chapter  V — Transfer  to  a  Neutral  Flag 

An  enemy  merchant  vessel  is  liable  to  capture,  whereas  a  neutral 
merchant  vessel  is  immune.  It  can  therefore  be  readily  understood 
that  a  belligerent  cruiser  encountering  a  merchant  vessel  which  lays 
claim  to  neutral  nationality  has  to  inquire  whether  such  nationality 
has  been  acquired  legitimately  or  merely  in  order  to  shield  the  vessel 


GENERAL  REPORT  TO  THE   CONFERENCE  171 

from  the  risks  to  which  she  would  have  been  exposed  had  she  retained 
her  former  nationahty.  This  question  naturally  arises  when  the  trans- 
fer has  taken  place  a  comparatively  short  time  before  the  moment 
at  which  the  ship  is  searched,  whether  the  actual  date  be  before  or 
after  the  outbreak  of  hostilities.  The  answer  will  be  different  accord- 
ing as  the  question  is  looked  at  from  the  point  of  view  of  commercial 
or  belligerent  interests.  Fortunately,  rules  have  been  agreed  upon 
which  conciliate  both  these  interests  as  far  as  possible,  and  which  at 
the  same  time  tell  belligerents  and  neutral  commerce  what  their  posi- 
tion is. 

Article  55.  The  transfer  of  an  enemy  vessel  to  a  neutral  flag,  eflfected  before 
the  outbreak  of  hostilities,  is  valid,  unless  it  is  proved  that  such  transfer  was 
made  in  order  to  evade  the  consequences  to  which  an  enemy  vessel,  as  such, 
is  exposed.  There  is,  however,  a  presumption,  if  the  bill  of  sale  is  not  on 
board  a  vessel  which  has  lost  her  belligerent  nationality  less  than  sixty  days  be- 
fore the  outbreak  of  hostilities,  that  the  transfer  is  void.  This  presumption  may 
be  rebutted. 

Where  the  transfer  was  effected  more  than  thirty  days  before  the  outbreak 
of  hostilities,  there  is  an  absolute  presumption  that  it  is  valid  if  it  is  uncondi- 
tional, complete,  and  in  conformity  with  the  laws  of  the  countries  concerned, 
and  if  its  effect  is  such  that  neither  the  control  of,  nor  the  profits  earned  by, 
the  vessel  remain  in  the  same  hands  as  before  the  transfer.  If,  however,  the 
vessel  lost  her  belligerent  nationality  less  than  sixty  days  before  the  outbreak  of 
hostilities,  and  if  the  bill  of  sale  is  not  on  board,  the  capture  of  the  vessel 
gives  no  right  to  damages. 

The  general  rule  laid  down  in  the  first  paragraph  is  that  the  trans- 
fer of  an  enemy  vessel  to  a  neutral  flag  is  valid,  assuming,  of  course, 
that  the  ordinary  requirements  of  the  law  have  been  fulfilled.  It  is 
upon  the  captor,  if  he  wishes  to  have  the  transfer  annulled,  that  the 
onus  lies  of  proving  that  its  object  was  to  evade  the  consequences  en- 
tailed by  the  war  in  prospect.  There  is  one  case  which  is  treated  as 
suspicious,  that,  namely,  in  which  the  bill  of  sale  is  not  on  board  when 
the  ship  has  changed  her  nationality  less  than  sixty  days  before  the 
outbreak  of  hostilities.  The  presumption  of  validity  which  has  been 
set  up  by  the  first  paragraph  in  favor  of  the  vessel  is  then  replaced 
by  a  presumption  in  favor  of  the  captor.  It  is  presumed  that  the 
transfer  is  void,  but  the  presumption  may  be  rebutted.  With  a  view 
to  such  rebuttal,  proof  may  be  given  that  the  transfer  was  not  effected 
in  order  to  evade  the  consequences  of  the  war;  it  is  unnecessary  to 
add  that  the  ordinary  requirements  of  the  law  must  have  been  fulfilled. 


172  NAVAL  CONFERENCE  AT  LONDON 

It  was  thought  desirable  to  give  to  commerce  a  guaranty  that  the 
right  of  treating  a  transfer  as  void  on  the  ground  that  it  was  effected 
in  order  to  evade  the  consequences  of  war  should  not  extend  too  far, 
and  should  not  cover  too  long  a  period.  Consequently,  if  the  transfer 
has  been  effected  more  than  thirty  days  before  the  outbreak  of  hos- 
tilities, it  can  not  be  impeached  on  that  ground  alone,  and  it  is  regarded 
as  unquestionably  valid  if  it  has  been  made  under  conditions  which 
show  that  it  is  genuine  and  final.  These  conditions  are  as  follows : 
the  transfer  must  be  unconditional,  complete,  and  in  conformity  with 
the  laws  of  the  countries  concerned,  and  its  effect  must  be  such  that 
both  the  control  of,  and  the  profits  earned  by,  the  vessel  pass  into 
other  hands.  When  once  these  conditions  are  proved  to  exist,  the 
captor  is  not  allowed  to  set  up  the  contention  that  the  vender  fore- 
saw the  war  in  which  his  country  was  about  to  be  involved,  and 
wished  by  the  sale  to  shield  himself  from  the  risks  to  which  a  state 
of  war  would  have  exposed  him  in  respect  of  the  vessels  he  was  trans- 
ferring. Even  in  this  case,  however,  when  a  vessel  is  encountered  by 
a  cruiser  and  her  bill  of  sale  is  not  on  board,  she  may  be  captured  if 
a  change  of  nationality  has  taken  place  less  than  sixty  days  before 
the  outbreak  of  hostilities ;  that  circumstance  has  made  her  suspect. 
But  if  before  the  prize  court  the  proof  required  by  the  second  para- 
graph is  adduced,  she  must  be  released,  though  she  can  not  claim 
compensation,  inasmuch  as  there  was  good  reason  for  capturing  her. 

Article  56.  The  transfer  of  an  enemy  vessel  to  a  neutral  flag  effected  after 
the  outbreak  of  hostilities  is  void  unless  it  is  proved  that  such  transfer  was  not 
made  in  order  to  evade  the  consequences  to  which  an  enemy  vessel,  as  such,  is 
exposed. 

Provided  that  there  is  an  absolute  presumption  that  a  transfer  is  void — 

(1)  If  the  transfer  has  been  made  during  a  voyage  or  in  a  blockaded  port. 

(2)  If  a  right  to  repurchase  or  recover  the  vessel  is  reserved  to  the  vender. 

(3)  If  the  requirements  of  the  municipal  law  governing  the  right  to  fly  the 
flag  under  which  the  vessel  is  sailing  have  not  been  fulfilled. 

The  rule  respecting  transfers  made  after  the  outbreak  of  hostilities 
is  more  simple.  vSuch  a  transfer  is  only  valid  if  it  is  proved  that  its 
object  was  not  to  evade  the  consequences  to  which  an  enemy  vessel, 
as  such,  is  exposed.  The  rule  accepted  in  respect  to  transfers  made 
before  the  outbreak  of  hostilities  is  inverted.  In  that  case  there  is 
a  presumption  that  the  transfer  is  valid;  in  the  present,  that  it  is 
void — provided  always,  that  proof  to  the  contrary  may  be  given.    For 


GENERAL  REPORT  TO   THE   CONFERENCE  173 

instance,  it  might  be  proved  that  the  transfer  had  taken  place  by 
inheritance. 

Article  56  recites  cases  in  which  the  presumption  that  the  transfer 
is  void  is  absolute,  for  reasons  which  can  be  readily  understood.  In 
the  first  case  the  connection  between  the  transfer  and  the  war  risk- 
run  by  the  vessel  is  evident.  In  the  second,  the  transferee  is  a  mere 
man  of  straw,  who  is  to  be  treated  as  owner  during  a  dangerous 
period,  after  which  the  vender  will  recover  possession  of  his  vessel. 
Lastly,  the  third  case  might  strictly  be  regarded  as  already  provided 
for,  since  a  vessel  which  lays  claim  to  neutral  nationality  must  natu- 
rally prove  that  she  has  a  right  to  it. 

At  one  time  provision  was  made  in  this  article  for  the  case  of  a 
vessel  which  was  retained,  after  the  transfer,  in  the  trade  in  which 
she  had  previously  been  engaged.  Such  a  circumstance  is  in  the 
highest  degree  suspicious ;  the  transfer  has  a  fictitious  appearance, 
inasmuch  as  nothing  has  changed  in  regard  to  the  vessel's  trade.  This 
would  apply,  for  instance,  if  a  vessel  were  running  on  the  same  line 
before  and  after  the  transfer.  It  was,  however,  objected  that  to  set 
up  an  absolute  presumption  would  sometimes  be  too  severe,  and  that 
certain  kinds  of  vessels,  as  for  example,  tank  ships,  could,  on  account 
of  their  build,  engage  only  in  a  certain  definite  trade.  To  meet  this 
objection  the  word  "route"  was  then  added,  so  that  it  would  have 
been  necessary  that  the  vessel  should  be  engaged  in  the  same  trade 
and  on  the  same  route ;  it  was  thought  that  in  this  way  the  above  con- 
tention would  have  been  satisfactorily  met.  However,  the  suppression 
of  this  case  from  the  list  being  insisted  on,  it  was  agreed  to  eliminate 
it.  Consequently,  a  transfer  of  this  character  now  falls  within  the 
general  rule ;  it  is  certainly  presumed  to  be  void,  but  the  presumption 
may  be  rebutted. 

Chapter  VI — Enemy  Character 

The  rule  in  the  Declaration  of  Paris  that  "the  neutral  flag  covers 
enemy  goods,  with  the  exception  of  contraband  of  war,"  corresponds 
so  closely  with  the  advance  of  civilization  and  has  taken  so  firm 
a  hold  on  the  public  mind  that  it  is  impossible,  in  the  face  of  so 
extensive  an  application,  to  avoid  seeing  in  that  rule  the  embodiment 
of  a  principle  of  the  common  law  of  nations  which  can  no  longer  be 
disputed.  The  determination  of  the  neutral  or  enemy  character  of 
merchant   vessels   accordingly   decides   not   only   the   question    of    the 


174  NAVAL  CONFERENCE  AT  LONDON 

validity  of  their  capture,  but  also  the  fate  of  the  non-contraband  goods 
on  board.  A  similar  general  observation  may  be  made  with  reference 
to  the  neutral  or  enemy  character  of  goods.  No  one  thinks  of  con- 
testing today  the  principle  according  to  which  "neutral  goods,  with 
the  exception  of  contraband  of  war,  are  not  liable  to  capture  on  board 
an  enemy  ship."  It  is,  therefore,  only  in  respect  of  goods  found  on 
board  an  enemy  ship  that  the  question  whether  they  are  neutral  or 
enemy  property  arises. 

The  determination  of  what  constitutes  neutral  or  enemy  character 
thus  appears  as  a  development  of  the  two  principles  laid  down  in  1856, 
or  rather  as  a  means  of  securing  their  just  application  in  practice. 

The  advantage  of  deducing  from  the  practices  of  different  countries 
some  clear  and  simple  rules  on  this  subject  may  be  said  to  need  no 
demonstration.  The  uncertainty  as  to  the  risk  of  capture,  if  it  does 
not  put  an  end  to  trade,  is  at  least  the  most  serious  of  hindrances  to 
its  continuance.  A  trader  ought  to  know  the  risks  which  he  runs  in 
putting  his  goods  on  board  this  or  that  ship,  while  the  underwriter, 
if  he  does  not  know  the  extent  of  those  risks,  is  obliged  to  charge  war 
premiums,  which  are  often  either  excessive  or  else  inadequate. 

The  rules  which  form  this  chapter  are,  unfortunately,  incomplete. 
Certain  important  points  had  to  be  laid  aside,  as  has  been  already 
observed  in  the  introductory  explanations  and  as  will  be  further 
explained  below. 

Article  57.  Subject  to  the  provisions  respecting  transfer  to  another  flag,  the 
neutral  or  enemy  character  of  a  vessel  is  determined  by  the  flag  which  she  is 
entitled  to  fly. 

The  caise  where  a  neutral  vessel  is  engaged  in  a  trade  which  is  closed  in  time 
of  peace  remains  outside  the  scope  of  this  rule  and  is  in  no  wise  affected  by  it. 

The  principle,  therefore,  is  that  the  neutral  or  enemy  character  of 
a  vessel  is  determined  by  the  flag  which  she  is  entitled  to  fly.  It  is 
a  simple  rule  which  appears  satisfactorily  to  meet  the  special  case  of 
ships,  as  distinguished  from  that  of  other  movable  property,  and  notably 
of  the  cargo.  FVom  more  than  one  point  of  view  ships  may  be  said 
to  possess  an  individuality ;  notably,  they  have  a  nationality,  a  national 
character.  This  attribute  of  nationality  finds  visible  expression  in  the 
right  to  fly  a  flag.  It  has  the  effect  of  placing  ships  under  the  protec- 
tion and  control  of  the  State  to  which  they  belong.  It  makes  them 
amenable  to  the  sovereignty  and  to  the  laws  of  that  State  and  liable 


GENERAL  REPORT  TO   THE   CONFERENCE  175 

to  requisition  should  the  occasion  arise.  Here  is  the  surest  test  of 
whether  a  vessel  is  really  a  unit  in  the  merchant  marine  of  a  country, 
and  here,  therefore,  the  best  test  by  which  to  decide  whether  her  char- 
acter is  neutral  or  enemy.  It  is,  moreover,  preferable  to  rely  exclusively 
upon  this  test  and  to  discard  all  considerations  connected  with  the  per- 
sonal status  of  the  owner. 

The  text  makes  use  of  the  words  "the  flag  which  the  vessel  is  enti- 
tled to  fly";  that  expression  means,  of  course,  the  flag  under  which, 
whether  she  is  actually  flying  it  or  not,  the  vessel  is  entitled  to  sail 
according  to  the  municipal  laws  which  govern  that  right. 

Article  57  safeguards  the  provisions  respecting  transfer  to  another 
flag,  as  to  which  it  is  sufficient  to  refer  to  Articles  55  and  56;  a  vessel 
may  very  well  have  the  right  to  fly  a  neutral  flag,  as  far  as  the  law 
of  the  country  to  which  she  claims  to  belong  is  concerned,  but  may  be 
treated  as  an  enemy  vessel  by  a  belligerent,  because  the  transfer  in 
virtue  of  which  she  has  hoisted  the  neutral  flag  is  annulled  by  Article 
55  or  Article  56. 

Lastly,  the  question  was  raised  whether  a  vessel  loses  her  neutral 
character  when  she  is  engaged  in  a  trade  which  the  enemy,  prior  to 
the  war,  reserved  exclusively  for  his  national  vessel ;  but  as  has  been 
observed  above  in  connection  with  the  subject  of  unneutral  service,  no 
agreement  was  reached,  and  the  question  remains  an  open  one,  as  the 
second  paragraph  of  Article  57  is  careful  to  explain. 

Article  58.  The  neutral  or  enemy  character  of  goods  found  on  board  an 
enemy  vessel  is  determined  by  the  neutral  or  enemy  character  of  the  owner. 

Unlike  ships,  goods  have  no  individuality  of  their  own ;  their  neutral 
or  enemy  character  is  made  to  depend  upon  the  personal  stc^tus  of 
their  owner.  This  opinion  prevailed  after  an  exhaustive  study  of  dif- 
ferent views,  which  inclined  toward  reliance  on  the  country  of  origin 
of  the  goods,  the  status  of  the  person  at  whose  risk  they  are,  of  the 
consignee,  or  of  the  consignor.  The  test  adopted  in  Article  58  ap- 
pears, moreover,  to  be  in  conformity  with  the  terms  of  the  Declaration 
of  Paris,  as  also  with  those  of  the  Convention  of  The  Hague  of  the 
18th  October,  1907,  relative  to  the  establishment  of  an  International 
Prize  Court,  where  the  expression  "neutral  or  enemy  property"  is  used. 
(Articles  1,  3,  4,  8.) 

But  it  can  not  be  concealed  that  Article  58  solves  no  more  than  a 
part  of  the  problem,  and  that  the  easier  part ;  it  is  the  neutral  or  enemy 


176  NAVAL  CONFERENCE  AT  LONDON 

character  of  the  owner  which  determines  the  character  of  the  goods, 
but  what  is  to  determine  the  neutral  or  enemy  character  of  the  owner? 
On  this  point  nothing  is  said,  because  it  was  found  impossible  to  arrive 
at  an  agreement.  Opinions  were  divided  between  domicile  and  nation- 
ality; no  useful  purpose  will  be  served  by  reproducing  here  the  argu- 
ments adduced  to  support  the  two  positions.  It  was  hoped  that  a 
compromise  might  have  been  reached  on  the  basis  of  a  clause  to  the 
following  effect : 

The  neutral  or  enemy  character  of  goods  found  on  board  an 
enemy  vessel  is  determined  by  the  neutral  or  enemy  nationality  of 
their  owner,  or,  if  he  is  of  no  nationality  or  of  double  nationality 
(i.  e.,  both  neutral  and  enemy),  by  his  domicile  in  a  neutral  or 
enemy  country; 

Provided  that  goods  belonging  to  a  limited  liability  or  joint  stock 
company  are  considered  as  neutral  or  enemy  according  as  the 
company  has  its  headquarters  in  a  neutral  or  enemy  country. 

But  there  was  no  unanimity. 

Article  59.  In  the  absence  of  proof  of  the  neutral  character  of  goods  found 
on  board  an  enemy  vessel,  they  are  presumed  to  be  enemy  goods. 

Article  .^9  gives  expression  to  the  traditional  rule  according  to 
which  goods  found  on  board  an  enemy  vessel  are,  failing  proof  to  the 
contrary,  presumed  to  be  enemy  goods ;  this  is  merely  a  simple  pre- 
sumption, which  leaves  to  the  claimant  the  right,  but  at  the  same  time 
the  onus,  of  proving  his  title. 

Article  60.  Enemy  goods  on  board  an  enemy  vessel  retain  their  enemy  char- 
acter until  they  reach  their  destination,  notwithstanding  any  transfer  effected 
after  the  outbreak  of  hostilities  while  the  goods  are  being  forwarded. 

If,  however,  prior  to  the  capture,  a  former  neutral  owner  exercises,  on  the 
bankruptcy  of  an  existing  enemy  owner,  a  recognized  legal  right  to  recover  the 
goods,  they  regain  their  neutral  character. 

This  provision  contemplates  the  case  where  goods  which  were 
enemy  property  at  the  time  of  dispatch  have  been  the  subject  of  a 
sale  or  transfer  during  the  course  of  the  voyage.  The  ease  with 
which  enemy  goods  might  secure  protection  from  the  exercise  of  the 
right  of  capture  by  means  of  a  sale  which  is  made  subject  to  a  recon- 
veyance of  the  property  on  arrival  has  always  led  to  a  refusal  to 
recognize  such  transfers.     The  enemy  character  subsists. 

With  regard  to  the  moment  from  which  goods  must  be  considered 


GENERAL  REPORT  TO   THE  CONFERENCE  177 

to  acquire  and  retain  the  enemy  character  of  their  owner,  the  text  has 
been  inspired  by  the  same  spirit  of  equity  as  governed  the  Convention 
of  The  Hague,  relative  to  the  status  of  merchant  vessels  on  the  out- 
break of  hostilities,  and  by  the  same  desire  to  protect  mercantile  oper- 
ations undertaken  in  the  security  of  a  time  of  peace.  It  is  only  when 
the  transfer  takes  place  after  the  outbreak  of  hostilities  that  it  is,  so 
far  as  the  loss  of  enemy  character  is  concerned,  inoperative  until  the 
arrival  of  the  goods  in  question.  The  date  which  is  taken  into  con- 
sideration here  is  that  of  the  transfer,  and  not  of  the  departure  of  the 
vessel.  For,  while  the  vessel  which  started  before  the  war  began,  and 
remains,  perhaps,  unaware  of  the  outbreak  of  hostilities,  may  enjoy 
on  this  account  some  degree  of  exemption,  the  goods  may  nevertheless 
possess  enemy  character ;  the  enemy  owner  of  these  goods  is  in  a  posi- 
tion to  be  aware  of  the  state  of  war,  and  it  is  for  that  very  reason 
that  he  is  likely  to  seek  to  evade  its  consequences. 

It  was,  however,  thought  right  to  add  what  is,  if  not  a  limitatiKDn,  at 
least  a  complement  agreed  to  be  necessary.  In  a  great  number  of 
countries  an  unpaid  vender  has,  in  the  event  of  the  bankruptcy  of  the 
buyer,  a  recognized  legal  right  to  recover  the  goods  which  have  already 
become  the  property  of  the  buyer  but  not  yet  reached  him  (stoppage 
in  transitu).  In  such  a  case  the  sale  is  canceled,  and,  in  consequence 
of  the  recovery,  the  vender  obtains  the  goods  again  and  is  not  deemed 
ever  to  have  ceased  to  be  the  owner.  This  right  gives  to  neutral  com- 
merce, in  the  case  of  a  genuine  bankruptcy,  a  protection  too  valuable 
to  be  sacrificed,  and  the  second  paragraph  of  Article  60  is  intended  to 
preserve  it. 

Chapter  VII — Convoy 

The  practice  of  convoy  has,  in  the  past,  occasionally  given  rise  to 
grave  difficulties  and  even  to  conflict.  It  is  therefore  satisfactory  to 
be  able  to  record  the  agreement  which  has  been  reached  upon  this 
subject. 

Article  61.  Neutral  vessels  under  national  convoy  are  exempt  from  search. 
The  commander  of  a  convoy  gives,  in  writing,  at  the  request  of  the  commander 
of  a  beUigerent  war-ship,  all  information  as  to  the  character  of  the  vessels  and 
their  cargoes  which  could  be  obtained  by  search. 

The  principle  laid  down  is  simple ;  a  neutral  vessel  under  the  convoy 
of  a  war-ship  of  her  own  nationality  is  exempt  from  search.  The 
reason  for  this  rule  is  that  the  belligerent  cruiser  ought  to  be  able  to 
find  in  the  assurances  of  the  commander  of  the  convoy  as  good  a 


178  NAVAL  CONFERENCE  AT  LONDON 

guaranty  as  would  be  afforded  by  the  exercise  of  the  right  of  search 
itself ;  in  fact,  she  can  not  call  in  question  the  assurances  given  by  the 
official  representative  of  a  neutral  Government  without  displaying  a 
lack  of  international  courtesy.  If  neutral  Governments  allow  belliger- 
ents to  search  vessels  sailing  under  their  flag,  it  is  because  they  do  not 
wish  to  be  responsible  for  the  supervision  of  such  vessels,  and  there- 
fore allow  belligerents  to  protect  themselves.  The  situation  is  altered 
when  a  neutral  Government  consents  to  undertake  that  responsibility ; 
the  right  of  search  has  no  longer  the  same  importance. 

But  it  follows  from  the  explanation  of  the  rule  respecting  convoy 
that  the  neutral  Government  undertakes  to  afford  the  belligerents 
every  guaranty  that  the  vessels  convoyed  shall  not  take  advantage  of 
the  protection  accorded  to  them  in  order  to  do  anything  inconsistent 
with  their  neutrality,  as,  for  example,  to  carry  contraband,  render  un- 
neutral service  to  the  belligerent,  or  attempt  to  break  blockade.  There 
is  need,  therefore,  that  a  genuine  supervision  should  be  exercised  from 
the  outset  over  the  vessels  which  are  to  be  convoyed ;  and  that  super- 
vision must  be  continued  throughout  the  voyage.  The  Government 
must  act  with  vigilance  so  as  to  prevent  all  abuse  of  the  right  of  con- 
voy, and  must  give  to  the  officer  who  is  put  in  command  of  a  convoy 
precise  instructions  to  this  effect. 

A  belligerent  cruiser  encounters  a  convoy;  she  communicates  with 
the  commander  of  the  convoy,  who  must,  at  her  request,  give  in  writ- 
ing all  relevant  information  about  the  vessels  under  his  protection. 
A  written  declaration  is  required,  because  it  prevents  all  ambiguities 
and  misunderstandings,  and  because  it  pledges  to  a  greater  extent  the 
responsibility  of  the  commander.  The  object  of  such  a  declaration  is 
to  make  search  unnecessary  by  the  mere  fact  of  giving  to  the  cruiser 
the  information  which  the  search  itself  would  have  supplied. 

Article  62.  If  the  commander  of  the  belligerent  war-ship  has  reason  to  sus- 
pect that  the  confidence  of  the  commander  of  the  convoy  has  been  abused,  he 
communicates  his  suspicions  to  him.  In  such  a  case  it  is  for  the  commander  of 
the  convoy  alone  to  investigate  the  matter.  He  must  record  the  result  of  such 
investigation  in  a  report,  of  which  a  copy  is  handed  to  the  officer  of  the  war- 
ship. If,  in  the  opinion  of  the  commander  of  the  convoy,  the  facts  shown  in 
the  report  justify  the  capture  of  one  or  more  vessels,  the  protection  of  the  con- 
voy must  be  withdrawn  from  such  vessels. 

In  the  majority  of  cases  the  cruiser  will  be  satisfied  with  the  decla-  ' 
ration  which  the  commander  of  the  convoy  will  have  given  to  her,  but 


GENERAL  REPORT  TO  THE   CONFERENCE  179 

she  may  have  serious  grounds  for  believing  that  the  confidence  of  the 
commander  has  been  abused,  as,  for  example,  that  a  ship  under  con- 
voy of  vv^hich  the  papers  are  apparently  in  order  and  exhibit  nothing 
suspicious  is,  in  fact,  carrying  contraband  cleverly  concealed.  The 
cruiser  may,  in  such  a  case,  communicate  her  suspicions  to  the  com- 
mander of  the  convoy,  and  an  investigation  may  be  considered  neces- 
sary. If  so,  it  will  be  made  by  the  commander  of  the  convoy,  since 
it  is  he  alone  who  exercises  authority  over  the  vessels  placed  under 
his  protection.  It  appeared,  nevertheless,  that  much  difficulty  might 
often  be  avoided  if  the  belligerent  were  allowed  to  be  present  at  this 
investigation ;  otherwise  he  might  still  suspect,  if  not  the  good  faith,  at 
least  the  vigilance  and  perspicacity  of  the  person  who  conducted  the 
search.  But  it  was  not  thought  that  an  obligation  to  allow  the  officer 
of  the  cruiser  to  be  present  at  the  investigation  should  be  imposed 
upon  the  commander  of  the  convoy.  He  must  act  as  he  thinks  best ;  if 
he  agrees  to  the  presence  of  an  officer  of  the  cruiser,  it  will  be  as  an 
act  of  courtesy  or  good  policy.  He  must  in  every  case  draw  up  a 
report  of  the  investigation  and  give  a  copy  to  the  officer  of  the  cruiser. 

Differences  of  opinion  may  occur  between  the  two  officers,  particu- 
larly in  relation  to  conditional  contraband.  The  character  of  a  port 
to  which  a  cargo  of  corn  is  destined  may  be  disputed.  Is  it  an  ordi- 
nary commercial  port,  or  is  it  a  port  which  serves  as  a  base  of  supply 
for  the  armed  forces?  The  situation  which  arises  out  of  the  mere 
fact  of  the  convoy  must  in  such  a  case  be  respected.  The  officer  of 
the  cruiser  can  do  no  more  than  make  his  protest,  and  the  difficulty 
must  be  settled  through  the  diplomatic  channel. 

The  situation  is  altogether  different  if  a  vessel  under  convoy  is 
found  beyond  the  possibility  of  dispute  to  be  carrying  contraband. 
The  vessel  has  no  longer  a  right  to  protection,  since  the  condition 
upon  which  such  protection  was  granted  has  not  been  fulfilled.  Be- 
sides deceiving  her  own  Government,  she  has  tried  to  deceive  the 
belligerent.  She  must  therefore  be  treated  as  a  neutral  merchant 
vessel  encountered  in  the  ordinary  way  and  searched  by  a  belligerent 
cruiser.  She  can  not  complain  at  being  exposed  to  such  rigorous 
treatment,  since  there  is  in  her  case  an  aggravation  of  the  offense 
committed  by  a  carrier  of  contraband. 


180  NAVAL  CONFERENCE  AT  LONDON 

Chapter  VIII — Resistance  to  Search 

The  subject  treated  in  this  chapter  was  not  mentioned  in  the  pro- 
gram submitted  by  the  British  Government  in  February,  1908,  but 
it  is  intimately  connected  w^ith  several  of  the  questions  in  that  pro- 
gram, and  thus  attracted  the  attention  of  the  Conference  in  the  course 
of  its  deHberations ;  and  it  was  thought  necessary  to  frame  a  rule 
upon  it,  the  drafting  of  which  presented  little  difficulty. 

A  belligerent  cruiser  encounters  a  merchant  vessel  and  summons 
her  to  stop  in  order  that  she  may  be  searched.  The  vessel  summoned 
does  not  stop,  but  tries  to  avoid  the  search  by  flight.  The  cruiser  may 
employ  force  to  stop  her,  and  the  merchant  vessel,  if  she  is  damaged 
or  sunk,  has  no  right  to  complain,  seeing  that  she  has  failed  to  comply 
with  an  obligation  imposed  upon  her  by  the  law  of  nations. 

If  the  vessel  is  stopped,  and  it  is  shown  that  it  was  only  in  order  to 
escape  the  inconvenience  of  being  searched  that  recourse  was  had  to 
flight,  and  that  beyond  this  she  had  done  nothing  contrary  to  neutral- 
ity, she  will  not  be  punished  for  her  attempt  at  flight.  If,  on  the 
other  hand,  it  is  established  that  the  vessel  has  contraband  on  board, 
or  that  she  has  in  some  way  or  other  failed  to  comply  with  her  duty 
as  a  neutral,  she  will  suffer  the  consequences  of  her  infraction  of 
neutrality,  but  in  this  case  as  in  the  last,  she  will  not  undergo  any 
punishment  for  her  attempt  at  flight.  Expression  was  given  to  the 
contrary  view,  namely,  that  a  ship  should  be  punished  for  an  obvious 
attempt  at  flight  as  much  as  for  forcible  resistance.  It  was  suggested 
that  the  prospect  of  having  the  escaping  vessel  condemned  as  good 
prize  would  influence  the  captain  of  the  cruiser  to  do  his  best  to  spare 
her.     But  in  the  end  this  view  did  not  prevail. 

Article  63.  Forcible  resistance  to  the  legitimate  exercise  of  the  right  of  stop- 
page, search,  and  capture  involves  in  all  cases  the  condemnation  of  the  vessel. 
The  cargo  is  liable  to  the  same  treatment  as  the  cargo  of  an  enemy  vessel. 
Goods  belonging  to  the  master  or  owner  of  the  vessel  are  treated  as  enemy 
goods. 

The  situation  is  different  if  forcible  resistance  is  made  to  any  legiti- 
mate action  by  the  cruiser.  The  vessel  commits  an  act  of  hostility 
and  must  from  that  moment  be  treated  as  an  enemy  vessel ;  she  will 
therefore  be  subject  to  condemnation,  although  the  search  may  not 
have  shown  that  anything  contrary  to  neutrality  had  been  done.  So 
far  no  difficulty  seems  to  arise. 


GENERAL  REPORT  TO   THE  CONFERENCE  181 

What  must  be  decided  with  regard  to  the  cargo?  The  rule  which 
appeared  to  be  the  best  is  that  according  to  which  the  cargo  will  be 
treated  like  the  cargo  on  board  an  enemy  vessel.  This  assimilation 
involves  the  following  consequences.  A  neutral  vessel  which  has 
offered  resistance  becomes  an  enemy  vessel  and  the  goods  on  board 
are  presumed  to  be  enemy  goods.  Neutrals  who  are  interested  may 
claim  their  property,  in  accordance  with  Article  3  of  the  Declaration 
of  Paris,  but  enemy  goods  will  be  condemned,  since  the  rule  that  the 
flag  covers  the  goods  can  not  be  adduced,  because  the  captured  vessel 
on  board  which  they  are  found  is  considered  to  be  an  enemy  vessel. 
It  will  be  noticed  that  the  right  to  claim  the  goods  is  open  to  all  neu- 
trals, even  to  those  whose  nationality  is  that  of  the  captured  vessel ; 
it  would  seem  to  be  an  excess  of  severity  to  make  such  persons  suffer 
for  the  action  of  the  master.  There  is,  however,  an  exception  as 
regards  the  goods  which  belong  to  the  owner  of  the  vessel;  it  seems 
natural  that  he  should  bear  the  consequences  of  the  acts  of  his  agent. 
His  property  on  board  the  vessel  is  therefore  treated  as  enemy  goods. 
A  fortiori  the  same  rule  applies  to  the  goods  belonging  to  the  master. 

Chapter  IX — Compensation 

This  chapter  is  of  very  general  application,  inasmuch  as  the  pro- 
visions which  it  contains  are  operative  in  all  the  numerous  cases  in 
which  a  cruiser  may  capture  a  vessel  or  goods. 

Article  64.  If  the  capture  of  a  vessel  or  of  goods  is  not  upheld  by  the  prize- 
court,  or  if  the  prize  is  released  without  any  judgment  being  given,  the  parties 
interested  have  the  right  to  compensation,  unless  there  were  good  reasons  for 
capturing  the  vessel  or  goods. 

A  cruiser  has  captured  a  neutral  vessel  on  the  ground,  for  example, 
of  carriage  of  contraband  or  breach  of  blockade.  The  prize  court 
releases  the  vessel,  declaring  the  capture  to  be  void.  This  decision 
alone  is  evidently  not  enough  to  indemnify  the  parties  interested  for 
the  loss  incurred  in  consequence  of  the  capture,  and  this  loss  may  have 
been  considerable,  since  the  vessel  has  been  during  a  period,  which 
may  often  be  a  very  long  one,  prevented  from  engaging  in  her  ordi- 
nary trade.  May  these  parties  claim  to  be  compensated  for  this  in- 
jury? Reason  requires  that  the  affirmative  answer  should  be  given, 
if  the  injury  has  been  undeserved — that  is  to  say,  if  the  capture  was 
not  brought  about  by  some  fault  of  the  parties.     It  may,  indeed,  hap- 


182  NAVAL  CONFERENCE  AT  LONDON 

pen  that  there  was  good  reason  for  the  capture,  because  the  master 
of  the  vessel  searched  did  not  produce  evidence  which  ought  in  the 
ordinary  course  to  have  been  available  and  which  was  only  furnished 
at  a  later  stage.  In  such  a  case  it  would  be  unjust  that  compensation 
should  be  awarded.  On  the  other  hand,  if  the  cruiser  has  really  been 
at  fault,  if  the  vessel  has  been  captured  when  there  were  not  good 
reasons  for  doing  so,  it  is  just  that  compensation  should  be  granted. 

It  may  also  happen  that  a  vessel  which  has  been  captured  and  taken 
into  a  port  is  released  by  the  action  of  the  executive  without  the  inter- 
vention of  a  prize  court.  The  existing  practice,  under  such  circum- 
stances, is  not  uniform.  In  some  countries  the  prize  court  has  no 
jurisdiction,  unless  there  is  a  question  of  validating  a  capture,  and  can 
not  adjudicate  on  a  claim  for  compensation  based  upon  the  ground 
that  the  capture  would  have  been  held  unjustifiable;  in  other  countries 
the  prize  court  would  have  jurisdiction  to  entertain  a  claim  of  this 
kind.  On  this  point,  therefore,  there  is  a  difference  which  is  not 
altogether  equitable,  and  it  is  desirable  to  lay  down  a  rule  which  will 
produce  the  same  result  in  all  countries.  It  is  reasonable  that  every 
capture  effected  without  good  reasons  should  give  to  the  parties  inter- 
ested a  right  to  compensation  without  its  being  necessary  to  draw  any 
distinction  between  the  cases  in  which  the  capture  has  or  has  not  been 
followed  by  a  decision  of  a  prize  court ;  and  this  argument  is  all  the 
more  forcible  when  the  capture  may  have  so  little  justification  that 
the  vessel  is  released  by  the  action  of  the  executive.  A  provision  in 
general  terms  has  therefore  been  adopted,  which  is  capable  of  covering 
all  cases  of  capture. 

It  should  be  observed  that  in  the  text  no  reference  is  made  to  the 
question  whether  the  national  tribunals  are  competent  to  adjudicate 
on  a  claim  for  compensation.  In  cases  where  proceedings  are  taken 
against  the  property  captured  no  doubt  upon  this  point  can  be  enter- 
tained. In  the  course  of  the  proceedings  taken  to  determine  the  valid- 
ity of  a  capture  the  parties  interested  have  the  opportunity  of  making 
good  their  right  to  compensation,  and  if  the  national  tribunal  does  not 
give  them  satisfaction  they  can  apply  to  the  International  Prize  Court. 
If,  on  the  other  hand,  the  action  of  the  belligerent  has  been  confined 
to  the  capture  it  is  the  law  of  the  belligerent  captor  which  decides 
whether  there  are  tribunals  competent  to  entertain  a  demand  for  com- 
pensation; and  if  so,  what  are  those  tribunals?  The  international  court 
has  not,  according  to  the  convention  of  The  Hague,  any  jurisdiction  in 


GENERAL  REPORT  TO  THE  CONFERENCE  183 

such  a  case.  From  an  international  point  of  view  the  diplomatic  chan- 
nel is  the  only  one  available  for  making  good  such  a  claim,  whether  the 
cause  for  complaint  is  founded  on  a  decision  actually  delivered  or  on 
the  absence  of  any  tribunal  having  jurisdiction  to  entertain  it. 

The  question  was  raised  as  to  whether  it  was  necessary  to  draw  a 
distinction  between  the  direct  and  the  indirect  losses  suffered  by  vessel 
or  goods.  The  best  course  appeared  to  be  to  leave  the  prize  court  free 
to  estimate  the  amount  of  compensation  due,  which  will  vary  according 
to  the  circumstances  and  can  not  be  laid  down  in  advance  in  rules 
going  into  minute  details. 

For  the  sake  of  simplicity  mention  has  only  been  made  of  the  vessel, 
but  what  has  been  said  applies,  of  course,  to  cargo  captured  and  after- 
wards released.  Innocent  goods  on  board  a  vessel  which  has  been 
captured  suffer,  in  the  same  way,  all  the  inconvenience  which  attends 
the  capture  of  the  vessel ;  but  if  there  was  good  cause  for  capturing 
the  vessel  whether  the  capture  has  subsequently  been  held  to  be  valid 
or  not,  the  owners  of  the  cargo  have  no  right  to  compensation. 

It  is  perhaps  useful  to  indicate  certain  cases  in  which  the  capture  of 
a  vessel  would  be  justified,  whatever  might  be  the  ultimate  decision  of 
the  prize  court.  Notably,  there  is  the  case  where  some  or  all  of  the 
ship's  papers  have  been  thrown  overboard,  suppressed,  or  intentionally 
destroyed  on  the  initiative  of  the  master  or  one  of  the  crew  or  pas- 
sengers. There  is  in  such  a  case  an  element  which  will  justify  any 
suspicion  and  afford  an  excuse  for  capturing  the  vessel,  subject  to  the 
master's  ability  to  account  for  his  action  before  the  prize  court.  Even 
if  the  court  should  accept  the  explanation  given  and  should  not  find 
any  reason  for  condemnation,  the  parties  interested  can  not  hope  to 
recover  compensation. 

An  analogous  case  would  be  that  in  which  there  were  found  on 
board  two  sets  of  papers,  or  false  or  forged  papers,  if  this  irregularity 
were  connected  with  circumstances  calculated  to  contribute  to  the  cap- 
ture of  the  vessel. 

It  appeared  sufficient  that  these  cases  in  which  there  would  be  a 
reasonable  excuse  for  the  capture  should  be  mentioned  in  the  present 
report,  and  should  not  be  made  the  object  of  express  provisions,  since 
otherwise  the  mention  of  these  two  particular  cases  might  have  led  to 
the  supposition  that  they  were  the  only  cases  in  which  a  capture  could 
be  justified. 

Such,  then,  are  the  principles  of  international  law- to  which  the  Naval 


184  NAVAL  CONFERENCE  AT  LONDON 

Conference  has  sought  to  give  recognition  as  being  fitted  to  regulate  in 
practice  the  intercourse  of  nations  on  certain  important  questions  in 
regard  to  which  precise  rules  have  hitherto  been  wanting.  The  Con- 
ference has  thus  taken  up  the  work  of  codification  begun  by  the 
Declaration  of  Paris  of  1856.  It  has  worked  in  the  same  spirit  as  the 
Second  Peace  Conference,  and,  taking  advantage  of  the  labors  accom- 
plished at  The  Hague,  it  has  been  able  to  solve  some  of  the  problems 
which,  owing  to  the  lack  of  time,  that  Conference  was  compelled  to 
leave  unsolved.  Let  us  hope  that  it  may  be  possible  to  say  that  those 
who  have  drawn  up  the  Declaration  of  London  of  1909  are  not  alto- 
gether unworthy  of  their  predecessors  of  1856  and  1907. 

Final  Provisions 

These  provisions  have  reference  to  various  questions  relating  to  the 
effect  of  the  Declaration,  its  ratification,  its  coming  into  force,  its 
denunciation,  and  the  accession  of  unrepresented  Powers. 

Article  65.  The  provisions  of  the  present  Declaration  must  be  treated  as  a 
whole  and  can  not  be  separated. 

This  article  is  of  great  importance  and  is  in  conformity  with  that 
which  was  adopted  in  the  Declaration  of  Paris. 

The  rules  contained  in  the  present  Declaration  relate  to  matters  of 
great  importance  and  great  diversity.  They  have  not  all  been  accepted 
with  the  same  degree  of  eagerness  by  all  the  delegations.  Concessions 
have  been  made  on  one  point  in  consideration  of  concessions  obtained 
on  another.  The  whole,  all  things  considered,  has  been  recognized  as 
satisfactory,  and  a  legitimate  expectation  would  be  falsified  if  one 
Power  might  make  reservations  on  a  rule  to  which  another  Power 
attached  particular  importance. 

Article  66.  The  signatory  Powers  undertake  to  insure  the  mutual  observance 
of  the  rules  contained  in  the  present  Declaration  in  any  war  in  which  all  the 
belligerents  are  parties  thereto.  They  will  therefore  issue  the  necessary  in- 
structions to  their  authorities  and  to  their  armed  forces,  and  will  take  such 
measures  as  may  be  required  in  order  to  insure  that  it  will  be  applied  by  their 
courts,  and  more  particularly  by  their  prize  courts. 

According  to  the  engagement  resulting  from  this  article,  the  Decla- 
ration applies  to  the  relations  between  the  signatory  Powers  when  the 
belligerents  are  likewise  parties  to  the  Declaration. 


GENERAL  REPORT  TO   THE   CONFERENCE  185 

It  will  be  the  duty  of  each  Power  to  take  the  measures  necessary  to 
insure  the  observance  of  the  Declaration.  These  measures  may  vary 
in  diflferent  countries  and  may  or  may  not  involve  the  intervention  of 
the  legislature.     The  matter  is  one  of  national  legal  requirements. 

It  should  be  observed  that  neutral  Powers  also  may  find  themselves 
in  a  position  of  having  to  give  instructions  to  their  authorities,  notably 
to  the  commanders  of  convoys,  as  previously  explained. 

Article  67.     The  present  Declaration  shall  be  ratified  as  soon  as  possible. 

The  ratifications  shall  be  deposited  in  London. 

The  first  deposit  of  ratifications  shall  be  recorded  in  a  protocol  signed  by  the 
representatives  of  the  Powers  taking  part  therein,  and  by  His  Britannic  Majesty's 
principal  Secretary  of  State  for  Foreign  Affairs. 

The  subsequent  deposits  of  ratification  shall  be  made  by  means  of  a  written 
notification  addressed  to  the  British  Government,  and  accompanied  by  the  in- 
strument of  ratification. 

A  duly  certified  copy  of  the  protocol  relating  to  the  first  deposit  of  ratifica- 
tions, and  of  the  notifications  mentioned  in  the  preceding  paragraph  as  well  as 
of  the  instruments  of  ratification  which  accompany  them,  shall  be  immediately 
sent  by  the  British  Government,  through  the  diplomatic  channel,  to  the  signa- 
tory Powers.  The  said  Government  shall,  in  the  cases  contemplated  in  the  pre- 
ceding paragraph,  inform  them  at  the  same  time  of  the  date  on  which  it  re- 
ceived the  notification. 

This  provision,  of  a  purely  formal  character,  needs  no  explanation. 
The  wording  adopted  at  The  Hague  by  the  Second  Peace  Conference 
has  been  borrowed. 

Article  68.  The  present  Declaration  shall  take  eflfect.  in  the  case  of  the 
Powers  which  were  parties  to  the  first  deposit  of  ratifications,  sixty  days  after 
the  date  of  the  protocol  recording  such  deposit,  and  in  the  case  of  the  Powers 
which  shall  ratify  subsequently,  sixty  days  after  the  notification  of  their  ratifi- 
cation shall  have  been  received  by  the  British  Government. 

Article  69.  In  the  event  of  one  of  the  signatory  Powers  wishing  to  denounce 
the  present  Declaration,  such  denunciation  can  only  be  made  to  take  effect  at  the 
end  of  a  period  of  twelve  years  beginning  sixty  days  after  the  first  deposit  of 
ratifications,  and  after  that  time,  at  the  end  of  successive  periods  of  six  years, 
of  which  the  first  will  begin  at  the  end  of  the  period  of  twelve  years. 

Such  denunciation  must  be  notified  in  writing,  at  least  one  year  in  advance,  to 
the  British  Government,  which  shall  inform  all  the  other  Powers. 

It  will  only  operate  in  respect  of  the  denouncing  Power. 

It  follows  implicitly  from  Article  69  that  the  Declaration  is  of  in- 
definite duration.  The  periods  after  which  denunciation  is  allowed 
have  been  fixed  on  the  analogy  of  the  Convention  for  the  establishment 
of  an  International  Prize  Court. 


186  NAVAL  CONFERENCE  AT  LONDON 

Article  70.  The  Powers  represented  at  the  London  Naval  Conference  attach 
particular  importance  to  the  general  recognition  of  the  rules  which  they  have 
adopted,  and  therefore  express  the  hope  that  the  Powers  which  were  not  repre- 
sented there  will  accede  to  the  present  Declaration.  They  request  the  British 
Government  to  invite  them  to  do  so. 

A  Power  which  desires  to  accede  shall  notify  its  intention  in  writing  to  the 
British  Government,  and  transmit  simultaneously  the  act  of  accession,  which 
will  be  deposited  in  the  archives  of  the  said  Government. 

The  said  Government  shall  forthwith  transmit  to  all  the  other  Powers  a  duly 
certified  copy  of  the  notification,  together  with  the  act  of  accession,  and  com- 
municate the  date  on  which  such  notification  was  received.  The  accession  takes 
effect  sixty  days  after  such  date. 

In  respect  of  all  matters  concerning  this  Declaration,  acceding  Powers  shall 
be  on  the  same  footing  as  the  sigfnatory  Powers. 

The  Declaration  of  Paris  also  contained  an  invitation  to  the  Powers 
which  were  not  represented  to  accede  to  the  Declaration.  The  official 
invitation  in  this  case,  instead  of  being  made  individually  by  each  of 
the  Powers  represented  at  the  Conference,  may  more  conveniently  be 
made  by  Great  Britain  acting  in  the  name  of  all  the  Powers. 

The  procedure  for  accession  is  very  simple.  The  fact  that  the  ac- 
ceding Powers  are  placed  on  the  same  footing  in  every  respect  as  the 
signatory  Powers  of  course  involves  compliance  by  the  former  with 
Article  65.  A  Power  can  accede  only  to  the  whole,  not  merely  to  a 
part,  of  the  Declaration. 

Article  71.  The  present  Declaration,  which  bears  the  date  of  the  26th  Feb- 
ruary, 1909,  may  be  signed  in  London  up  till  the  30th  June,  1909,  by  the  pleni- 
potentiaries of  the  Powers  represented  at  the  Naval  Conference. 

As  at  The  Hague,  account  has  been  taken  of  the  situation  of  certain 
Powers  the  representatives  of  which  may  not  be  in  a  position  to  sign 
the  Declaration  at  once,  but  which  desire,  nevertheless,  to  be  considered 
as  signatory,  and  not  as  acceding,  Powers. 

It  is  scarcely  necessary'  to  say  that  the  plenipotentiaries  of  the 
Powers  referred  to  in  Article  71  are  not  necessarily  those  who  were,  as 
such,  delegates  at  the  Naval  Conference. 

In  faith  whereof  the  plenipotentiaries  have  signed  the  present  Declaration  and 
have  thereto  affixed  their  seals. 

Done  at  London  the  twenty-sixth  day  of  February,  one  thousand  nine  hundred 
and  nine,  in  a  single  original,  which  shall  remain  deposited  in  the  archives  of 
the  British  Government,  and  of  which  duly  certified  copies  shall  be  sent  through 
the  diplomatic  channel  to  the  Powers  represented  at  the  Naval  Conference. 


Final  Protocol  of  the  London  Naval  Conference^ 

[Translation] 

The  London  Naval  Conference,  called  together  by  His  Britannic 
Majesty's  Government,  assembled  at  the  Foreign  Office  on  the  4th 
December,  1908,  with  the  object  of  laying  down  the  generally  recog- 
nized principles  of  international  law  in  accordance  with  Article  7  of 
the  Convention  signed  at  The  Hague  on  the  18th  October,  1907,  for 
the  establishment  of  an  International  Prize  Court. 

The  Powers  enumerated  below  took  part  in  this  Conference,  at 
which  they  appointed  as  their  representatives  the  following  delegates : 

Germany  :  Mr.  Kriege,  Privy  Councilor  of  Legation  and  Legal  Ad- 
viser to  the  Department  of  Foreign  Affairs,  member  of  the  Permanent 
Court  of  Arbitration,  plenipotentiary  delegate;  Captain  Starke,  Naval 
Attache  to  the  Imperial  Embassy  at  Paris,  naval  delegate ;  Mr.  Goppert, 
Councilor  of  Legation  and  Assistant  Councilor  to  the  Department  for 
Foreign  Affairs,  legal  delegate ;  Commander  von  Bulow,  second  naval 
delegate. 

The  United  States  of  America  :  Rear  Admiral  Charles  H.  Stock- 
ton, plenipotentiary  delegate;  Mr.  George  Grafton  Wilson,  professor 
at  Brown  University,  lecturer  on  international  law  at  the  Naval  War 
College  and  at  Harvard  University,  plenipotentiary  delegate. 

Austria-Hungary:  His  Excellency  Mr.  Constantin  Theodore 
Dumba,  Privy  Councilor  of  His  Imperial  and  Royal  Apostolic  Majesty, 
Envoy  Extraordinary  and  Minister  Plenipotentiary,  plenipotentiary 
delegate ;  Rear  Admiral  Baron  Leopold  von  Jedina-Palombini,  naval 
delegate ;  Baron  Alexandre  Hold  von  Ferneck,  Attache  to  the  Ministry 
of  the  Imperial  and  Royal  Household  and  of  Foreign  Affairs,  professor 
on  the  staff  of  the  University  of  Vienna,  assistant  delegate. 

Spain  :  Gabriel  Maura  y  Gamazo,  Count  de  la  Mortera,  Member  of 
Parliament,  plenipotentiary  delegate;  Captain  R.  Estrada,  naval  dele- 
gate. 

France:  Mr.  Louis  Renault,  Minister  Plenipotentiary,  professor  at 
the  Faculty  of  Law  at  Paris,  Legal  Adviser  to  the  Ministry  of  Foreign 
Affairs,  member  of  the  Institute  of  France,  member  of  the  Permanent 
Court  of  Arbitration,  plenipotentiary  delegate ;  Rear  Admiral  Le  Bris, 
technical  delegate ;  Mr.  H.  Fromageot,  barrister  at  the  Court  of  Appeal 
in  Paris,  technical  delegate;  Count  de  Manneville,  Secretary  of  Em- 
bassy of  the  first  class,  delegate. 


1  Foreign  Relations  of  the  United  States,  1909,  p.  316. 


188  NAVAL  CONFERENCE  AT  LONDON 

Great  Britain  :  The  Earl  of  Desart,  K.C.B.,  King's  Proctor,  pleni- 
potentiary delegate;  Rear  Admiral  Sir  Charles  Ottley,  K.C.M.G., 
M.V.O.,  R.N.,  delegate;  Rear  Admiral  Edmond  J.  W.  Slade,  M.V.O., 
R.N.,  delegate;  Mr.  Eyre  Crowe,  C.B.,  delegate;  Mr.  Cecil  Hurst, 
C.B.,  delegate. 

Italy  :  Mr.  Guido  Fusinato,  Councilor  of  State,  Member  of  Parlia- 
ment, ex-Minister  of  Public  Instruction,  member  of  the  Permanent 
Court  of  Arbitration,  plenipotentiary  delegate ;  Captain  Count  Giovanni 
Lovatelli,  naval  delegate ;  Mr.  Arturo  Ricci-Busatti,  Councilor  of  Lega- 
tion, Head  of  the  Legal  Department  of  the  Ministry  for  Foreign 
Afifairs,  assistant  delegate. 

Japan  :  Vice  Admiral  Baron  Toshiatsu  Sakamoto,  Head  of  the 
Naval  Education  Department,  plenipotentiary  delegate;  Mr.  Enjiro 
Yamaza,  Councilor  of  the  Imperial  Embassy  in  London,  plenipoten- 
tiary delegate;  Captain  Sojiro  Tochinai,  Naval  Attache  at  the  Imperial 
Embassy  in  London,  naval  delegate ;  Mr.  Tadao  Yamakawa,  Councilor 
to  the  Imperial  Ministry  of  Marine,  technical  delegate ;  Mr.  Sakutaro 
Tachi,  professor  at  the  Imperial  University  of  Tokyo,  technical  dele- 
gate ;  Mr.  Michikazu  Matsuda,  Second  Secretary  at  the  Imperial  Lega- 
tion at  Brussels,  technical  delegate. 

Netherlands:  Vice  Admiral  Jonkheer  J.  A.  Roell,  Aide-de-camp, 
on  special  service  to  Her  Majesty  the  Queen,  ex-Minister  of  Marine, 
plenipotentiary  delegate ;  Jonkheer  L.  H.  Ruyssenaers,  Envoy  Extraor- 
dinary and  Minister  Plenipotentiary,  ex-Secretary  General  of  the  Per- 
manent Court  of  Arbitration,  plenipotentiary  delegate ;  First  Lieutenant 
H.  G.  Surie,  naval  delegate. 

Russia:  Baron  Taube,  Doctor  of  Laws,  Councilor  to  the  Imperial 
Ministry  of  Foreign  Affairs,  professor  of  international  law  at  the  Uni- 
versity of  St.  Petersburg,  plenipotentiary  delegate  ;  Captain  Behr,  Naval 
Attache  in  London,  naval  delegate ;  Colonel  of  the  Admiralty  Ovtchin- 
nikow,  professor  of  international  law  at  the  Naval  Academy,  naval 
delegate;  Baron  Nolde,  official  of  the  sixth  class  for  special  missions 
attached  to  the  Minister  for  Foreign  Afifairs,  professor  of  international 
law  at  the  Polytechnic  Institute  of  St.  Petersburg,  technical  delegate; 
Mr.  Linden,  Head  of  Department  at  the  Imperial  Ministry  of  Trade 
and  Commerce,  technical  delegate. 

In  a  series  of  meetings  held  from  December  4,  1908,  to  February  26, 
1909,  the  Conference  has  drawn  up  for  signature  by  the  plenipoten- 
tiaries the  Declaration  concerning  the  laws  of  maritime  war,  the  text 
of  which  is  annexed  to  the  present  protocol. 


FINAL   PROTOCOL  OF   THE  CONFERENCE  189 

Moreover,  the  following  wish  has  been  adopted  by  the  delegates  of 
the  Powers  which  have  signed  or  which  have  expressed  the  intention 
of  signing  the  Hague  Convention  dated  October  18,  1907,  for  the  estab- 
lishment of  an  International  Prize  Court: 

The  delegates  of  the  Powers  represented  at  the  Naval  Confer- 
ence which  have  signed  or  expressed  the  intention  of  signing  the 
Convention  of  The  Hague  of  the  18th  October,  1907,  for  the  es- 
tablishment of  an  International  Prize  Court,  having  regard  to  the 
difficulties  of  a  constitutional  nature  which,  in  some  States,  stand 
in  the  way  of  the  ratification  of  that  Convention  in  its  present 
form,  agree  to  call  the  attention  of  their  respective  Governments 
to  the  advantage  of  concluding  an  arrangement  under  which  such 
States  would  have  the  power,  at  the  time  of  depositing  their  ratifi- 
cations, to  add  thereto  a  reservation  to  the  effect  that  resort  to  the 
International  Prize  Court  in  respect  of  decisions  of  their  national 
tribunals  shall  take  the  form  of  a  direct  claim  for  compensation, 
provided  always  that  the  effect  of  this  reservation  shall  not  be 
such  as  to  impair  the  rights  secured  under  the  said  Convention 
either  to  individuals  or  to  their  Governments,  and  that  the  terms 
of  the  reservation  shall  form  the  subject  of  a  subsequent  under- 
standing between  the  Powers  signatory  of  that  Convention. 

In  faith  whereof  the  plenipotentiaries  and  the  delegates  represent- 
ing those  plenipotentiaries  who  have  already  left  London  have  signed 
the  present  protocol. 

Done  at  London  the  twenty-sixth  day  of  February,  one  thousand 
nine  hundred  and  nine,  in  a  single  original,  which  shall  be  deposited 
in  the  archives  of  the  British  Government  and  of  which  duly  certified 
copies  shall  be  sent  through  the  diplomatic  channel  to  the  Powers  rep- 
resented at  the  Naval  Conference. 

For  Germany :  Kriege. 

For  the  United  States  of  America :        C.  H.  Stockton, 

George  Grafton  Wilson. 
For  Austria-Hungary:  C.  Dumba. 

For  Spain:  Ramon  Estrada. 

For  France :  L.  Renault. 

For  Great  Britain:  Desart. 

For  Italy:  Giovanni  Lovatelli. 

For  Japan:  T.  Sakamoto, 

E.  Yamaza. 
For  the  Netherlands :  J.  A.  Roell, 

L.  H.  Ruyssenaers. 
For  Russia:  F.  Behr. 


Instructions  to  the  American  Delegates  to  the  Conference  at  Lon- 
don to  Formulate  Rules  to  be  Observed  by  the  International 
Prize  Court  ^ 

Messrs.  Charles  H.  Stockton  and  George  G.  Wilson. 

Gentlemen  :  You  have  been  appointed  delegates  plenipotentiaries 
to  represent  the  United  States  at  the  Conference  to  be  held  at  London 
on  December  1,  1908,  to  formulate  rules  to  be  observed  by  the  Inter- 
national Prize  Court. 

Article  7  of  the  Convention  relative  to  the  creation  of  an  Interna- 
tional Prize  Court,  signed  at  The  Hague,  October  18,  1907,  provides 
that— 

If  a  question  of  law  to  be  decided  is  covered  by  a  treaty  in 
force  between  the  belligerent  captor  and  a  Power  which  is  itself 
or  whose  subject  or  citizen  is  a  party  to  the  proceedings,  the  court 
is  governed  by  the  provisions  of  the  said  treaty. 

In  the  absence  of  such  provisions,  the  court  shall  apply  the 
rules  of  international  law.  If  no  generally  recognized  rule  exists, 
the  court  shall  give  judgment  in  accordance  with  the  general  prin- 
ciples of  justice  and  equity. 

The  above  provisions  apply  equally  to  questions  relating  to  the 
order  and  mode  of  proof. 

If,  in  accordance  with  Articles  3,  2,  c,  the  ground  of  appeal  is 
the  violation  of  an  enactment  issued  by  the  belligerent  captor,  the 
court  will  enforce  the  enactment. 

The  court  may  disregard  failure  to  comply  with  the  procedure 
laid  down  in  the  enactments  of  the  belligerent  captor,  when  it  is 
of  opinion  that  the  consequences  of  complying  therewith  are  un- 
just and  inequitable. 

This  article,  proposed  by  the  British  delegation  and  adopted  by  the 
Conference,  has  proved  unsatisfactory  to  the  British  Government, 
which  has  called  a  conference  of  maritime  Powers  in  order  to  deter- 
mine in  advance  of  the  establishment  of  the  court  the  rules  of  law  to 
govern  its  decisions  in  matters  of  prize  submitted  for  its  determina- 
tion. 

The  first  paragraph  of  Article  7  is  clear  and  explicit,  providing,  as 
it  does,  that  the  court  is  to  be  governed  by  the  provisions  of  a  treaty 


1  Foreign  Relations  of  the  United  States,  1909,  p.  300. 


INSTRUCTIONS  TO  AMERICAN  DELEGATES  191 

in  force  between  the  litigating  nations  covering  the  question  of  law 
involved. 

The  first  sentence  of  the  second  paragraph  of  the  seventh  article 
provides  that  in  the  absence  of  treaties  between  litigating  parties  "the 
court  shall  apply  the  rules  of  international  law."  If  the  rules  of 
international  law  relating  to  prize  were  codified  and  accepted  as  an 
authoritative  statement  of  the  law  of  prize,  the  questions  presented 
to  the  court  for  its  determination  would  be  decided  with  reference  to 
a  code  of  laws  equally  binding  upon  the  signatory  Powers.  In  as  far 
as  the  law  of  prize  has  been  codified  the  provision  in  question  is  clear 
and  definite.  The  absence  of  a  general  agreement  upon  the  rules  of 
international  law  is  recognized  in  the  concluding  sentence  of  the  para- 
graph under  consideration,  which  provides  that  "if  no  generally  recog- 
nized rule  exists,  the  court  shall  give  judgment  in  accordance  with 
the  general  principles  of  justice  and  equity."  This  provision  of  the 
article  has  given  rise  to  great  discussion  and  dissatisfaction,  because 
wide  divergence  of  view  exists  as  to  the  law  properly  applicable  in 
such  case.  For  example,  in  Anglo-American  jurisprudence  the  laws 
of  contraband  and  blockade  constitute  a  system  recognized  generally 
as  the  Anglo-American  system,  whereas  the  laws  of  contraband  and 
blockade  definitely  understood  on  the  Continent  are  applied  in  the 
continental  as  distinguished  from  the  Anglo-American  sense.  As, 
therefore,  it  can  not  be  said  that  there  is  any  general  rule  regulating 
the  subject,  as  the  partisans  of  each  system  judge  and  determine  for 
themselves  each  case  as  it  arises,  it  necessarily  follows  that  the  court 
would  be  obliged  to  determine  which  system  is  considered  as  more 
conformable  "with  the  general  principles  of  justice  and  equity." 

In  its  note  of  March  27,  1908,  inviting  a  Conference,  the  British 
Government  stated  that — 

The  discussions  which  took  place  at  The  Hague  during  the 
recent  Conference  showed  that  on  various  questions  connected 
with  maritime  war  divergent  views  and  practices  prevailed  among 
the  nations  of  the  world.  Upon  some  of  these  subjects  an  agree- 
ment was  reached,  but  on  others  it  was  not  found  possible,  within 
the  period  for  which  the  Conference  assembled,  to  arrive  at  an 
understanding.  The  impression  was  gained  that  the  establish- 
ment of  the  International  Prize  Court  would  not  meet  with 
general  acceptance  so  long  as  vagueness  and  uncertainty  exist  as 
to  the  principles  which  the  court,  in  dealing  with  appeals  brought 
before  it,  would  apply  to  questions  of  far-reaching  importance 
affecting  naval  policy  and  practice. 


192  NAVAL  CONFERENCE  AT  LONDON 

The  subjects  upon  which  an  agreement  was  considered  indispensa- 
ble by  the  British  Government  in  order  to  enable  the  International 
Prize  Court  to  perform  the  high  services  expected  of  this  establish- 
ment were  the  following: 

(a)  Contraband,  including  the  circumstances  under  which  par- 
ticular articles  can  be  considered  as  contraband;  the  penalties  for 
their  carriage ;  the  immunity  of  a  ship  from  search  when  under 
convoy;  and  the  rules  with  regard  to  compensation  where  vessels 
have  been  seized,  but  have  been  found  in  fact  only  to  be  carrying 
innocent  cargo. 

(b)  Blockade,  including  the  questions  as  to  the  locality  where 
seizure  can  be  effected,  and  the  notice  that  is  necessary  before  a 
ship  can  be  seized. 

(c)  The  doctrine  of  continuous  voyage  in  respect  both  of  con- 
traband and  of  blockade. 

(d)  The  legality  of  the  destruction  of  neutral  vessels  prior  to 
their  condemnation  by  a  prize  court. 

(e)  The  rules  as  to  neutral  ships  or  persons  rendering  "unneu- 
tral service"  (assistance  hostile). 

(/)  The  legality  of  the  conversion  of  a  merchant  vessel  into  a 
war-ship  on  the  high  seas. 

(g)  The  rules  as  to  the  transfer  of  merchant  vessels  from  a 
belligerent  to  a  neutral  flag  during  or  in  contemplation  of  hos- 
tilities. 

(h)  The  question  whether  the  nationality  or  the  domicile  of 
the  owner  should  be  adopted  as  the  dominant  factor  in  deciding 
whether  property  is  enemy  property. 

The  importance  attached  by  the  British  Government  to  an  agree- 
ment upon  these  various  subjects  enumerated  in  the  program  is  evi- 
denced by  the  fact  that  it  is  stated  in  the  British  note  that  "it  would 
be  difficult,  if  not  impossible,  for  His  Majesty's  Government  to  carry 
the  legislation  necessary  to  give  effect  to  the  Convention  unless  they 
could  assure  both  Houses  of  the  British  Parliament  that  some  more 
definite  understanding  had  been  reached  as  to  the  rules  by  which  the 
new  tribunal  should  be  governed." 

In  order  to  facilitate  this  agreement  the  British  Government  sug- 
gested that  the  Governments  invited  to  the  Conference  "interchange 
memoranda  setting  out  concisely  what  they  regarded  as  the  correct 
rule  of  international  law  on  each  of  the  above  points,  together  with 
the  authorities  on  which  that  view  is  based." 

In  reply  to  the  request  of  the  British  Government  that  memoranda 
he  exchanged  I  stated  that — 


INSTRUCTIONS  TO  AMERICAN  DELEGATES  193 

The  Department  has  given  careful  consideration  to  the  sug- 
gestion that  each  Government  invited  to  the  Conference  prepare 
and  exchange  memoranda  setting  forth  its  practice  in  the  matters 
specifically  mentioned  in  the  tentative  program  for  the  Confer- 
ence submitted  in  the  British  Embassy's  note  of  March  27. 

The  attitude  of  the  United  States  is  well  known  to  each  of  the 
participating  Powers,  as  is  their  maritime  practice  to  the  dele- 
gates  appointed    by    the    United    States.      The    delegates    to    the 
Second   Hague   Peace   Conference   were   thus   instructed  by  the 
Secretary  of  State : 
As  to  the  framing  of  a  convention  relative  to  the  customs  of  maritime 
warfare,  you  are  referred  to  the  Naval  War  Code  promulgated  in  General 
Orders  551  of  the  Navy  Department  of  June  27,  1900,  which  has  met  with 
general  commendation  by  naval  authorities  throughout  the  civilized  world, 
and  which  in  general  expresses  the  views  of  the  United  States,  subject  to  a 
few  specific  amendments  suggested  in  the  volume  of  international  law  dis- 
cussions of  the  Naval  War  College  of  the  year  1903,  pages  91  to  97.    The 
order  putting  this  code  into  force  was  revoked  by  the  Navy  Department  in 
1904,  not  because  of  any  change  of  views  as  to  the  rules  which  it  contained, 
but  because  many  of  those   rules,  being  imposed  upon  the   forces  of   the 
United   States  by  the  order,  would  have  put  our  naval  forces  at  a  disad- 
vantage as  against  the  forces  of  other  Powers,  upon  whom  the  rules  were 
not  binding.     The  whole  discussion  of  these  rules  contained  in  the  volume 
to  which  I  have  referred  is  commended  to  your  careful  study. 

You  will  urge  upon  the  Peace  Conference  the  formulation  of  international 
rules  for  war  at  sea  and  will  offer  the  Naval  War  Code  of  1900,  with  the 
suggested  changes  and  such  further  changes  as  may  be  made  necessary  by 
other  agreements  reached  at  the  Conference,  as  a  tentative  formulation 
of  the  rules  which  should  be  considered. 

The  attitude  of  the  United  States  has  not  changed  since  the 
Conference,  and  the  relevant  portion  of  the  instructions  copied 
for  your  information  are  as  applicable  to  the  Maritime  Confer- 
ence as  they  were  to  the  Second  Hague  Peace  Conference. 

I  have  the  honor,  therefore,  to  transmit  herewith  copies  of  the 
Naval  War  Code  of  1900  and  of  the  volume  of  International 
Discussions  of  the  Naval  War  College  of  the  year  1903,  contain- 
ing the  amendments  to  be  made  to  the  Naval  War  Code  of  1900, 
to  serve  as  a  basis  of  discussion  in  the  Conference,  subject,  of 
course,  to  amendment,  in  lieu  of  the  memoranda  proposed  to  be 
prepared  and  exchanged  by  each  Power  invited  to  the  Maritime 
Conference. 

A  like  reply  was  sent  in  acknowledging  the  memoranda  transmitted 
to  the  Department  of  State  by  Austria-Hungary,  Germany,  Japan, 
Netherlands,  Russia,  Spain,  copies  of  which  you  have  already  re- 
ceived in  due  course. 


194  NAVAL   CONFERENCE  AT  LONDON 

As  you  are  familiar  with  the  law,  practice,  and  policy  of  the  United 
States  concerning  each  of  the  matters  mentioned  in  the  tentative 
program  of  the  British  Government,  it  does  not  seem  necessary  to 
furnish  you  precise  instructions  on  each  of  the  points  with  which  the 
Conference  will  be  called  to  deal.  You  are,  however,  provided  with 
a  copy  of  the  instructions  to  the  American  delegation  to  the  Hague 
Conference  of  1907,  and  you  are  directed  to  guide  yourselves  in  the 
consideration  of  any  matter  discussed  at  the  Conference  by  the  general 
and  specific  provisions  of  the  instructions  relating  to  maritime  war- 
fare and  the  rights  and  duties  of  neutrals.  You  are  accordingly 
authorized  and  instructed  to  present  to  the  Conference,  as  a  basis 
for  discussion,  the  Naval  War  Code  promulgated  in  General  Orders 
551  of  the  Navy  Department  of  June  27,  1900,  as  modified  by  the 
specific  amendments  suggested  in  the  volume  of  International  Law 
Discussions  of  the  Naval  War  College  for  the  year  1903,  pages  91-97, 
and  you  will  endeavor,  in  your  discretion,  to  secure  as  far  as  possible 
the  adoption  in  conventional   form  of  their  provisions. 

As  the  United  States  has  not  yet  ratified  the  Convention  for  the 
establishment  of  the  International  Prize  Court,  signed  at  The  Hague 
on  October  18,  1907,  and  as  the  ratification  of  the  instrument  is  ren- 
dered difficult  by  reason  of  objections  of  a  constitutional  and  internal 
nature  not  obtaining  in  other  countries,  you  will  be  careful  not  to 
assume  an  attitude  or  position  in  the  discussions  of  the  Conference 
which  may  seem  to  commit  the  United  States  to  the  ratification  of  the 
Convention  for  the  establishment  of  the  court,  or  to  commit  this  Gov- 
ernment, by  an  acceptance  of  the  general  rules  of  maritime  warfare 
to  be  formulated  by  the  Conference,  to  create  the  International  Court 
of  Prize  provided  for  in  the  Convention  signed  at  The  Hague  on 
October  18,  1907. 

While  taking  an  active  part  in  the  deliberations  of  the  Conference 
and  cooperating  with  the  various  Powers  represented  in  order  to 
render  it  a  success  by  securing  the  adoption  of  a  satisfactory  code  of 
maritime  warfare,  you  will  discuss  the  questions  presented  in  the 
light  of  general  theory  and  practice,  without  specific  reference  or 
application  to  the  proposed  International  Prize  Court. 

The  Department  is,  however,  desirous  that  the  International  Court 
of  Prize  may  be  established  in  general  accord  with  the  provisions  of 
the  Convention  concluded  at  The  Hague  on  October  18,  1907,  and  in 
order  to  facilitate  its  establishment  you  will  propose  to  the  Confer- 


INSTRUCTIONS  TO  AMERICAN  DELEGATES  195 

ence  an  additional  article  or  protocol  for  the  consideration  of  and 
eventual  acceptance  by  the  Conference,  by  which  each  signatory  of 
the  Convention  of  October  18,  1907,  shall  possess  the  option,  in 
accordance  with  local  legislation,  either  to  submit  the  general  ques- 
tion of  the  rightfulness  of  any  capture  to  the  determination  of  the 
International  Prize  Court  or  to  permit  an  appeal  from  the  judgment 
of  a  national  court  in  a  specific  case  direct  to  the  International  Court 
of  Prize,  as  contemplated  by  the  Convention  of  October  18,  1907. 

In  the  view  of  the  Department  the  following  draft  would  be  not 
merely  satisfactory,  but  calculated  to  remove  the  objections  made  to  the 
establishment  of  the  International  Court  of  Prize: 

Any  signatory  of  the  Convention  for  the  establishment  of  an  Inter- 
national Court  of  Prize,  signed  at  The  Hague  on  October  18,  1907, 
may  provide  in  the  act  of  ratification  thereof,  that,  in  lieu  of  sub- 
jecting the  judgments  of  the  courts  of  such  signatory  Powers  to 
review  upon  appeal  by  the  International  Court  of  Prize,  any  prize 
case  to  which  such  signatory  is  a  party  shall  be  subject  to  examina- 
tion de  novo  upon  the  question  of  the  captor's  liability  for  an  alleged 
illegal  capture,  and,  in  the  event  that  the  International  Court  of  Prize 
finds  liability  upon  such  examination  de  novo,  it  shall  determine  and 
assess  the  damages  to  be  paid  by  the  country  of  the  captor  to  the 
injured  party  by  reason  of  the  illegal  capture. 

Following  the  precedents  established  by  international  conferences, 
all  your  reports  and  communications  to  this  Government  will  be  made 
to  the  Department  of  State  for  proper  consideration  and  eventual 
preservation  in  the  archives.  Should  you  be  in  doubt  at  any  time 
regarding  the  meaning  or  effect  of  these  instructions,  or  should  you 
consider  at  any  time  that  there  is  occasion  for  special  instructions, 
you  will  communicate  freely  with  the  Department  of  State  by  telegraph. 

I  am,  gentlemen,  your  obedient  servant, 

Elihu  Root, 

Department  of  State, 

Washington,  November  21,  1Q08. 


Report  of  the  Delegates  of  the  United  States  to  the  International 
Naval  Conference  Held  at  London,  December  4,  1908,  to  Feb- 
ruary 26,  1909  1 

American  Embassy, 
London,  2d  March,  ipop. 
The  Hon.  Robert  Bacon, 

Secretary  of  State. 

Sir  :  We  have  the  honor  to  inform  you  that  the  International  Naval 
Conference  called  at  London  in  October,  1908,  and  later  postponed 
until  December,  1908,  assembled  at  the  Foreign  Office  in  London  on 
December  4,  at  noon.  Sir  Edward  Grey,  Secretary  of  State  for 
Foreign  Affairs,  extended  welcome  to  the  Conference  on  behalf  of 
Great  Britain.  The  Conference  then  proceeded  to  organization,  elect- 
ing the  Earl  of  Desart,  British  plenipotentiary,  as  president.  The 
following  Powers  were  represented  in  accordance  with  the  invitation 
given  them :  Germany,  the  United  States,  Austria-Hungary,  Spain, 
France,  Great  Britain,  Italy,  Japan,  Holland,  and  Russia. 

The  Conference,  after  a  few  plenary  meetings,  resolved  itself  into 
a  commission,  in  order  that  the  topics  before  it  might  be  considered 
in  a  less  formal  manner.  After  the  topics  had  received  considerable 
discussion  a  committee  of  examination  was  appointed  with  a  view  to 
reducing  the  material  presented  to  a  definite  form  for  the  considera- 
tion of  the  commission.  After  consideration  by  the  commission  the 
subjects  would  go  to  the  Conference  in  plenary  session  for  final  action. 
The  distinguished  French  jurist,  Monsieur  L.  Renault,  head  of  the 
French  delegation,  was  elected  the  chairman  of  the  commission  and 
of  the  committee  of  examination  and  finally  rapporteur  general.  The 
call  of  the  Conference  and  the  rules  adopted  for  its  procedure  are 
appended  to  this  report  (Annexes  A  and  B^). 

The  British  Government,  in  order  to  facilitate  the  work  of  the 
Conference,  called  for  a  memorandum  of  the  views  of  each  Power  as 
to  their  practice  in  matters  covered  by  the  subjects  named  in  the  call 
for  the  Conference. 

The  memoranda  thus  sent  was  finally  translated  into  French  and 
arranged  together  in  a  Red  Book  in  various  ways  and  under  several 


1  Foreign  Relations  of  the  United  States,  1909,  p.  304. 

2  Post,  p.  207. 


REPORT  OF  AMERICAN   DELEGATES  197 

heads  with  convenient  bases  of  discussion.  This  book,  a  copy  of 
which  has  been  duly  forwarded  to  the  Department,  proved  to  be  of 
great  value,  especially  in  the  earlier  days  of  the  Conference,  in  crys- 
tallizing views  and  showing  points  of  agreement  and  variance  upon 
the  subjects  treated  by  the  Conference. 

The  rules,  finally  formulated  by  the  Conference  into  a  Declaration 
relative  to  the  laws  of  maritime  war,  number  sixty-four  in  all,  and 
cover  the  subjects,  arranged  by  chapters,  of  Blockade  in  time  of  war, 
Contraband  of  war.  Unneutral  service,  Destruction  of  neutral  prizes. 
Transfer  of  flag,  Enemy  character.  Convoy,  Resistance  to  visit,  and 
Indemnity. 

After  the  completion  of  the  formulation  of  the  rules  above  men- 
tioned the  Conference,  considering  the  difficulties  that  may  arise  on 
account  of  the  constitutional  requirements  of  certain  States  which 
might  prevent  them  from  becoming  parties  to  the  Hague  Convention 
for  the  establishment  of  the  International  Prize  Court  of  Appeal,  drew 
up  a  protocol  of  closure  in  which  a  voeu  (or  wish)  was  expressed  to 
their  several  Governments  calling  attention  to  the  advantage  that 
would  arise  from  the  conclusion  of  an  arrangement  by  which  the 
States  affected  by  such  constitutional  difficulties  could  have  recourse 
to  the  International  Prize  Court  by  presenting  each  case  de  novo, 
without  affecting  the  rights  guaranteed  by  the  Convention  either  to 
private  persons  or  to  their  Governments.  This  protocol,  with  its 
included  voeu,  was  the  result  of  continued  eflForts  made  by  the  Ameri- 
can delegation  at  the  instance  of  the  Department  of  State.  It  was 
signed  by  all  of  the  plenipotentiaries  present,  or  by  the  delegates 
present  who  had  temporarily  taken  their  places. 

The  final  signing  of  the  declaration  and  protocol  was  effected  on 
the  26th  February,  after  which  the  Conference  adjourned  sine  die. 

Chapter  I — Blockade  in  Time  of  War 

These  rules  are  definitely  understood  to  have  no  reference  to  what 
has  been  called  "pacific  blockade." 

The  general  principles  in  regard  to  blockade  set  forth  in  the  Decla- 
ration of  Paris,  April  16,  1856,  which  have  been  interpreted  by  courts, 
and  are  therefore  fairly  established,  are  reaffirmed. 

The  right  of  the  commander  of  the  blockading  force  to  allow  or  to 
refuse  admission  to  a  blockaded  port  to  neutral  public  ships,  or  neu- 
tral vessels  in  distress,  is  recognized. 


198  NAVAL  CONFERENCE  AT  LONDON 

The  method  of  establishing  and  raising  a  blockade  is  made  more 
clear.  Certain  States  which  had  customarily  maintained  a  position 
which  required  notification  of  the  existence  of  blockade  at  the  line  of 
blockade  made  concessions  to  those  which,  like  the  United  States,  had 
stood  for  the  principle  of  public  notification  to  the  Government  whose 
flag  the  ship  flies. 

Some  States,  including  the  United  States,  had  formerly  maintained 
that  the  liabihty  for  the  violation  of  the  blockade  continues  until  the 
vessel  has  reached  her  home  port  or  completed  her  voyage.  With  the 
development  of  modern  commerce  there  has  arisen  much  difference 
of  opinion  as  to  what  constitutes  a  home  port  or  completion  of  voyage, 
and  in  fact  the  route  of  many  vessels,  such  as  tramp  cargo  steamers, 
is  determined  by  the  cargo  available  at  the  time,  and  such  a  vessel 
may  not  return  to  the  port  of  departure  for  months.  Under  these 
circumstances  and  with  a  view  to  avoiding  undue  interference  with 
neutral  commerce,  while  at  the  same  time  retaining  the  freedom  of 
action  for  the  belligerent,  a  rule  was  drawn  up  and  met  with  general 
favor,  to  the  effect  that  the  ship  guilty  of  violation  of  blockade  is 
liable  to  seizure  so  long  as  it  is  pursued  by  a  ship  of  the  blockading 
force  within  the  area  of  blockading  operations  known  as  the  rayon 
d'action,  or  before  entering  a  neutral  port  to  complete  her  voyage. 

Confiscation  is  the  general  penalty  for  violation  of  blockade. 

The  question  receiving  the  most  attention  was  that  of  rayon  d'action. 
Certain  States  were  in  favor  of  a  limitation  of  the  rayon  d'action  to 
a  very  small  area.  The  American  delegation  regarded  this  limitation 
as  opposed  to  the  principles  which  it  should  support.  The  form  of 
regulation  finally  adopted  is  as   follows : 

Neutral  vessels  can  not  be  captured  for  breach  of  blockade 
except  within  the  area  of  operations  of  the  war-ships  detailed 
to    render   the   blockade    effective. 

Statements  made  by  the  United  States  upon  the  subjects  of  blockade 
and  area  of  operations  are  herewith  appended — Annex  B  and  Annex  C. 

Chapter  II — Contraband  of  War 

The  question  of  contraband  involved  many  difficulties  which  can 
be  readily  understood  when  the  various  memoranda  submitted  by  the 
Powers  on  that  subject  are  consulted.     It  is  to  the  credit  of  the  Con- 


REPORT   OF  AMERICAN   DELEGATES  199 

ference  as  a  whole,  and  of  its  delegates  singly,  that  an  agreement, 
satisfactory  from  so  many  different  points  of  view,  was  reached.  These 
rules  are  more  in  harmony  with  modern  conditions  than  those  for- 
merly existing,  and  lighten  the  burden  of  neutrals  in  war  time  without 
sacrificing  belligerent  rights. 

The  Conference  adheres  to  the  old  nomenclature  of  absolute  and 
conditional  contraband,  adding,  however,  a  free  list  of  articles  which 
can  not  be  considered  contraband  of  war. 

The  first  list — that  of  absolute  contraband — is  the  one  virtually 
agreed  upon  at  The  Hague,  which,  to  prevent  prolonged  discussion 
and  in  accordance  with  instructions  from  the  Department,  was  accepted 
as  a  whole  by  the  American  delegation.  Item  No.  7,  concerning  horses, 
etc.,  was  found  objectionable  by  one  delegation,  and  if  an  amendment 
had  been  allowed  to  the  list,  their  objection  would  have  been  sup- 
ported by  the  American  delegation,  as  horses,  mules,  etc.,  in  the  United 
States  could  be  considered  as  conditional  contraband.  In  European 
countries,  however,  liable  as  their  inhabitants  are  to  forced  requisitions 
for  horses,  etc.,  they  may  be  logically  considered  as  absolute  contra- 
band. The  list  as  adopted  omits  many  articles  named  in  the  various 
memoranda,  such  as  canned  provisions,  sulphur,  saltpeter,  and  other 
materials  used  in  the  fabrication  of  explosives,  which,  if  included, 
would  have  been  prejudicial  to  the  United  States,  and  also  omits  cot- 
ton, which  under  one  memorandum  might  easily  have  been  included. 

The  second  list  of  contraband — that  of  conditional  contraband — 
depends  for  determination  of  character  upon  the  destination,  whether 
for  peaceful  or  warlike  purposes. 

If  by  changes  in  warfare  other  materials  outside  of  the  free  list 
become  adapted  to  the  uses  of  war,  they  can  be  added  to  the  lists  of 
absolute  or  conditional  contraband  by  means  of  a  published  notifica- 
tion to  the  other  Powers  either  before  or  after  the  opening  of  hos- 
tilities. 

The  free  list  consists  of  17  groups  of  articles,  as  follows: 

1.  Raw   cotton,    wool,   silk,   jute,   flax,   hemp,   and   other   raw 
materials  of  the  textile  industries,  and  yarns  of  the  same. 

2.  Oil  seeds  and  nuts ;  copra. 

3.  Rubber,  resins,  gums,  and  lacs ;  hops. 

4.  Raw  hides  and  horns,  bones,  and  ivory. 

5.  Natural  and  artificial  manures,  including  nitrates  and  phos- 
phates for  agricultural  purposes. 

6.  Metallic  ores. 


200  NAVAL   CONFERENCE  AT  LONDON 

7.  Earth,   clays,   lime,   chalk,   stone,   including  marble,   bricks, 
slates,  and  tiles. 

8.  Chinaware  and  glass. 

9.  Paper  and  paper-making  materials. 

10.  Soap,   paint,    including   articles   exclusively   used   in  their 
manufacture,  and  varnish. 

11.  Bleaching  powder,  soda  ash,  caustic  soda,  salt  cake,  am- 
monia, sulphate  of  ammonia,  and  sulphate  of  copper. 

12.  Agricultural,  mining,  textile,  and  printing  machinery. 

13.  Precious  and  semi-precious  stones,  pearls,  mother-of-pearl, 
and  corals. 

14.  Clocks  and  watches,  other  than  chronometers. 

15.  Fashion  and  fancy  goods. 

16.  Feathers  of  all  kinds,  hairs,  and  bristles. 

17.  Household  furniture;  office  furniture  and  requirements. 

The  establishment  of  this  list  is  of  great  benefit  to  the  sea-borne 
foreign  trade  of  all  countries,  and  especially  to  that  of  the  United 
States,  whose  exports  and  imports  would  be  greatly  affected  by  any 
uncertainty  regarding  cotton,  wool,  silk,  jute,  flax,  cotton  seed,  rubber, 
hides,  fertilizers,  metallic  ores,  paper  and  paper-making  materials, 
chemicals,  agricultural  and  other  machinery,  clocks  and  watches,  furni- 
ture, etc.  Drugs  and  medicines,  and  material  for  the  sick  and  wounded, 
are  included  among  those  not  contraband  of  war,  but  can  be  requi- 
sitioned with  compensation  for  the  needs  of  the  sick  and  wounded 
of  the  captor. 

The  doctrine  of  continuous  voyage  is  retained  with  respect  to 
absolute  contraband  and  well  defined  in  Article  30.  The  doctrine  of 
continuous  voyage  in  any  form  has  heretofore  been  considered  as 
non-existent  by  several  European  Powers,  and  it  is  a  very  considerable 
concession  upon  their  part  to  accept  it  as  applied  to  absolute  contra- 
band. On  our  part,  in  giving  up  continuous  voyage  as  applied  to 
conditional  contraband  and  blockade  we  gave  up  a  belligerent  right 
now  regarded  as  of  little  value.  The  articles  of  conditional  contra- 
band carried  by  neutral  carriers  would  be  bulky  and  difficult  to  trace 
when  bound  for  the  common  stock  of  a  neutral  country.  Not  being 
earmarked,  they  would  be  most  difficult  of  seizure  when  afloat.  They 
would  be,  as  a  rule,  matters  of  export  by  us  as  neutrals,  and  would 
be  such  materials  as  foodstuffs,  oats,  hay,  railway  materials,  coal,  oil, 
barbed  wire,  horseshoes,  etc.  It  is  unnecessary  to  say  that  to  free 
such  articles  from  the  fetters  of  the  continuous-voyage  doctrine  would 
be  of  great  service  to  our  trade  during  war  in  which  the  United  States 
is  a  neutral. 


REPORT   OF  AMERICAN   DELEGATES  201 

Much  relief  is  afforded  to  neutrals  in  respect  to  the  penalty  of  car- 
rying contraband.  In  the  first  place,  the  ship  is  not  subject  to  con- 
fiscation unless  more  than  half  of  the  cargo  is  contraband,  to  be  deter- 
mined either  by  weight,  volume,  value,  or  freight  value. 

A  rule  was  adopted  that  a  ship  seized  for  carrying  contraband, 
although  not  itself  liable  to  confiscation  because  the  proportion  of  con- 
traband was  below  one-half,  could  be  authorized  to  proceed  according 
to  circumstances  if  the  captain  was  ready  to  deliver  the  contraband 
articles  to  the  belligerent  man-of-war.  The  captor  in  such  a  case  has 
the  option  of  destroying  the  contraband  which  is  thus  delivered  to 
him.  This  procedure  is  one  of  value,  as  it  saves  from  capture  and 
detention  a  neutral  liner  filled  with  passengers,  mails,  and  valuable 
freight,  which  might  have  a  small  amount  of  contraband  known  or 
unknown  to  its  captain  and  owner.  This  procedure  is  also  in  con- 
formity with  many  treaties  made  by  the  United  States,  dating  from 
1783  to  1864.  It  avoids  vexatious  seizure  of  neutral  vessels — bad 
enough  in  the  times  of  small  vessels,  but  intolerable  with  the  great 
liners  of  today. 

Chapter  III — Unneutral  Service 

Certain  acts,  to  which,  by  forced  interpretation,  the  doctrines  of 
contraband  or  of  blockade  had  at  times  been  extended,  are  recognized 
as  differing  both  in  nature  and  in  penalty  from  contraband  and 
blockade.  Thus  much  confusion  is  avoided  in  time  of  war  upon  the 
sea.  Penalty  of  confiscation  of  ship  for  transport  of  troops  and  dis- 
patches for  the  belligerent,  and  for  cooperation  in  assisting  the  enemy, 
is  provided,  and  in  general,  penalties  are  as  for  carriage  of  contra- 
band. The  penalty  of  confiscation  and  treatment  as  an  enemy  ship 
is  provided  for  a  ship  taking  direct  part  in  hostilities,  under  orders 
of  the  belligerent,  wholly  loaded  by  the  enemy  Government  or  when 
exclusively  used  in  transport  service  of  the  enemy. 

The  aim  of  Article  48  is  to  justify  the  taking  of  an  officer  incorpo- 
rated in  the  armed  forces  from  a  ship  without  bringing  the  ship,  if  it 
be  a  large  vessel,  into  port  for  adjudication,  and  also  to  allow  the 
arrest  of  an  officer  or  officers  of  high  rank  who,  in  disguise  or  incog- 
nito and  unknown  to  the  captain  of  the  vessel,  are  on  board  of  a  neu- 
tral liner.  In  this  case  a  want  of  knowledge  on  the  part  of  the  proper 
authorities  of  the  vessel  might  readily  clear  the  vessel  from  any  taint 
and  show  there  was  no  proper  reason  for  sending  in  the  ship,  but  the 
right  to  take  the  prisoner  seems  important.     The  least  objectionable 


202  NAVAL  CONFERENCE  AT  LONDON 

action  would  be  to   take   the   enemy  officer,  but  allow   the   ship  to 
proceed. 

Chapter  IV — Destruction  of  Neutral  Prizes 

This  question  was  considered  very  fully  and  frankly  by  the  Con- 
ference. Views  at  first  thought  to  be  widely  divergent  were  found  to 
be  similar  in  many  respects.  While  some  proclaimed  the  right  to 
destroy  neutral  prizes,  no  one  admitted  that  this  could  be  done  except 
for  grave  reasons.  While  some  denied  the  right  to  destroy,  all  were 
inclined  to  admit  that  there  might  be  exceptional  circumstances  under 
which  destruction  must  be  permitted. 

All  admitted  that  in  general  a  neutral  prize  ought  not  to  be  destroyed, 
but  should  be  taken  to  a  prize  court;  but  under  exceptional  circum- 
stances a  vessel  otherwise  liable  to  confiscation  might  be  destroyed, 
though  it  would  be  necessary  to  care  for  persons  and  papers  on  board. 

Necessity  for  destruction  must  be  first  established,  and  the  further 
fact  that  the  vessel  would  in  any  case  be  liable  to  confiscation  must 
also  be  established,  though  if  the  necessity  for  destruction  is  not 
established,  the  liability  of  the  State  of  the  destroying  vessel  to  pay 
indemnity  is  recognized  whether  or  not  the  neutral  vessel  is  guilty. 
The  owner  of  neutral  merchandise  on  board  which  is  not  liable  to 
confiscation  is  also  entitled  to  indemnity.  Thus  restraint  commen- 
surate with  the  gravity  of  the  act  is  provided.  A  belligerent  com- 
mander destroying  a  neutral  vessel  puts  his  Government  under  grave 
responsibilities,  which  are  here  recognized.  The  conclusion  set  forth 
in  these  rules  seems  to  be  in  accord  with  the  doctrine  of  the  United 
States. 

Chapter  V — Transfer  of  Flag 

The  subject  of  transfer  of  flag  of  a  ship  in  consequence  of  sale  in 
anticipation  of  or  during  war  was  the  subject  of  frequent  and  pro- 
longed discussion.  A  private  ship  of  the  enemy  would  be  liable  to 
capture  in  time  of  war,  while  the  ship  of  a  neutral  would  be  free.  It 
is  natural,  therefore,  that  the  owners  of  ships  which  would  be  liable 
to  capture  in  time  of  war  should  desire  to  avoid  this  liability  by  sell- 
ing the  ships  to  a  neutral  and  placing  them  under  a  free  flag.  At  the 
same  time  a  belligerent  does  not  wish  to  be  deprived  of  the  oppor- 
tunity to  attack  ships  which  are  really  enemy  ships,  though  they  may 
be  for  the  time  flying  a  neutral  flag.  Thus  there  arises  in  time  of  war 
the  conflict  between  the  riffht  of  the  neutral  to  trade  with  one  bel- 


REPORT  OF  AMERICAN   DELEGATES  203 

ligerent  and  the  right  of  the  other  belligerent  to  interfere  with  bel- 
ligerent commerce. 

It  has  been  decided  that  commerce  in  ships  in  time  of  war  is,  in 
general,  not  legitimate  unless  it  is  bona  Me  commerce  and  not  under- 
taken to  evade  the  consequences  to  which  the  ship  would  be  liable  if 
it  retained  the  enemy  flag.  The  burden  of  proof  of  validity  of  the 
transfer  is  placed  on  the  vender.  In  all  such  cases  commerce  would 
be  regarded  as  illegitimate  when  the  transfer  is  made  (1)  in  transitu 
or  in  a  blockaded  port,  (2)  with  the  right  of  repurchase  or  return, 
or  (3)  contrary  to  the  laws  of  the  flag  which  it  bears. 

It  would  also  be  possible,  and  to  some  extent  has  been  the  practice, 
for  ship-owners  anticipating  war  to  make  transfers  just  before  the 
outbreak  of  war.  Such  transfers,  when  made  with  the  view  to  evad- 
ing the  consequences  of  the  war  and  not  as  commercial  transactions, 
are  not  regarded  as  legitimate,  but  the  burden  of  proof  rests  upon  the 
captor,  except  when  the  papers  in  regard  to  the  transfer,  which  has 
been  made  within  sixty  days  before  the  outbreak  of  war,  are  not  on 
board.  In  this  exceptional  case  the  burden  of  proof  of  the  validity 
of  the  transfer  is  placed  on  the  vessel,  as  there  is  not  sufficient  evi- 
dence at  hand  in  the  ship's  papers  to  enable  the  captor  to  release 
the  ship. 

It  would,  however,  be  an  undue  interference  with  commerce  if  all 
sales  or  sales  made  a  long  time  before  the  war  were  liable  to  be  re- 
garded as  invalid.  It  is  therefore  decided  that  sales  made  more  than 
thirty  days  before  the  war,  even  though  made  with  the  idea  of  evad- 
ing the  consequences  of  a  war  which  might  subsequently  break  out, 
would  be  valid  unless  there  is  some  irregularity  in  the  transfer  itself, 
or  unless  it  is  not  an  actual  transfer,  evidence  of  which  might  be  in 
the  fact  that  the  profits  and  control  remain  in  the  same  hands  as 
before  the  sale. 

There  are  thus  established  three  periods  under  which  transfer  of 
flag  is  considered,  (1)  during  war,  when  burden  of  proof  of  the 
validity  of  the  transfer  rests  upon  the  vender;  (2)  a  period  of  thirty 
days  before  the  war,  during  which  it  is  necessary  for  the  captor  to 
prove  that  the  transfer  is  made  to  evade  the  consequences  of  war; 
and  (3)  the  period  prior  to  thirty  days,  when,  regardless  of  whether 
or  not  the  transfer  is  made  to  escape  the  consequences  of  war,  it  is 
necessary  for  the  captor  to  establish  that  the  transfer  itself  is  irregular, 
or  not  in  fact  a  transfer.     It  is  also  necessary  that  in  order  to  have 


204  NAVAL  CONFERENCE  AT  LONDON 

advantages  of  these  provisions,  a  vessel  transferred  within  sixty  days 
before  the  vi^ar  shall  have  the  papers  relating  to  the  sale  on  board. 

These  provisions  establish  much  more  definite  rules,  where  formerly 
there  had  been  great  diversity  of  practice  among  States,  or  even  diver- 
sity in  the  same  State  at  different  periods.  Commerce  in  ships  is 
recognized  as  legitimate  under  such  restrictions  as  seem  necessary  in 
order  to  safeguard  belligerent  rights. 

The  attitude  of  the  American  delegation  is  shown  in  the  Annex  E, 
appended.  The  American  delegation  advocated  the  adoption  of  a  rule 
to  the  following  effect : 

A  transfer  effected  before  the  outbreak  of  war  is  valid  if  it  is 
absolute,  complete,  bona  Ude,  and  conforms  to  the  legislation  of 
the  States  interested,  and  if  it  has  for  its  effect  that  neither  the 
control  of  the  ship,  nor  the  profits  arising  from  its  use,  remain 
longer  in  the  same  hands  as  before  the  transfer. 

If  the  captor  can  establish  that  the  above  conditions  have  not 
been  fulfilled,  the  transfer  is  presumed  to  have  intervened  with 
the  intention  to  evade  the  consequences  of  war,  and  is  null. 

This  rule,  practically  as  above,  was  adopted. 

The  American  delegation  also  advocated  the  placing  of  a  definite 
limit  to  the  period  during  which  transfers  made  before  the  war  could 
be  questioned,  and  such  a  provision  was  finally  adopted  by  the  Con- 
ference. 

Thus  the  rights  of  belligerents  and  of  neutrals  are  defined  and 
safeguarded. 

Chapter  VI — Enemy  Character 

The  consideration  of  this  topic  was  intrusted  to  a  comite  juridique 
consisting  of  one  member  from  each  delegation.  The  States  repre- 
sented at  the  Conference  were  found  to  be  equally  divided,  five  favor- 
ing the  principle  of  domicile  of  the  proprietor  as  the  criterion  of 
character  of  goods  found  on  an  enemy  vessel  and  five  favoring  nation- 
ality. After  many  meetings,  it  was  found  impossible  to  reach  an 
agreement,  and  this  question  was  left  open,  the  rule  stating  that — 

The  neutral  or  enemy  character  of  merchandise  found  on  board 
an  enemy  ship  is  determined  by  the  neutral  or  enemy  character 
of  its  proprietor. 

What  principle  should  decide  the  neutral  or  enemy  character  of  the 
proprietor  is  not  determined. 


REPORT   OF  AMERICAN   DELEGATES  205 

The  other  rules  in  regard  to  enemy  character  in  the  main  formu- 
late existing  practice. 

Chapter  VII — Convoy 

Great  Britain  formerly  refused  to  admit  the  right  of  convoy  of 
neutral  merchant  vessels  by  neutral  ships  of  war.  In  a  spirit  of  con- 
ciliation that  Government  receded  from  its  former  position  and  ad- 
mitted the  right  of  convoy.  There  remained  then  only  the  determina- 
tion of  the  method  of  its  exercise.  The  American  delegation  steadily 
maintained  that  as  the  effect  of  convoy  was  in  the  main  to  remove 
the  vessels  under  escort  from  the  belligerent  right  of  visit  and  search, 
the  convoying  officer  should  assume  the  responsibility  for  the  vessels 
under  his  control.  Naturally  a  war  vessel  of  a  belligerent  approach- 
ing a  convoy  would  be  entitled  to  obtain  the  information  in  regard  to 
the  vessels  under  convoy  that  it  would  obtain  from  an  actual  visit 
to  the  vessels  if  they  were  not  under  convoy.  The  officer  in  com- 
mand of  the  public  vessel  convoying  the  merchant  vessels  should  be 
prepared  to  furnish  this  information.  The  commander  of  the  vessel 
of  the  belligerent  may  have  reason  to  believe  that  the  convoying  officer 
has  been  deceived,  and  in  such  case  may  properly  request  that  his 
suspicions  be  considered.  The  convoying  officer  should  investigate, 
and  may  if  he  desires  allow  an  officer  from  the  belligerent  vessel  to 
share  the  investigation,  and  should  inform  the  commander  of  the 
belligerent  of  the  results  of  his  investigation. 

If  the  commander  of  the  convoy  finds  that  a  vessel  to  which  he  has 
given  escort  is,  in  his  opinion,  violating  his  good  faith,  he  ought  to 
withdraw  his  protection.  Such  a  vessel  has  forfeited  its  right  to 
protection,  and,  in  justice  both  to  other  neutrals  and  the  belligerent, 
ought  to  be  liable  for  the  consequences. 

This  rule  was  drawn  with  view  to  affording  the  greatest  convenience 
and  service  to  neutrals,  without  depriving  belligerents  of  proper  war 
rights.     In  spirit  it  accords  with  both  American  doctrine  and  treaties. 

Chapter  VIII — Resistance  to  Visit  and  Search 

A  general  accord  was  found  in  the  opinion  upon  this  subject,  and 
the  following  rule  was  adopted : 

Resistance  by  force  to  the  legitimate  exercise  of  the  right  of 
visit,  search,  or  seizure  renders  the  vessels  in  all  cases  liable  to 
confiscation.    The  cargo  is  liable  to  the  same  treatment  as  the  cargo 


206  NAVAL   CONFERENCE  AT  LONDON 

of  an  enemy  ship.     The  merchandise  belonging  to  the  captain  or 
to  the  owners  of  the  ship  is  regarded  as  enemy  merchandise. 

Chapter  IX — Indemnity  for  Seizure 

It  has  been  recognized  by  prize  courts  that  in  cases  of  unjust  seizure 
the  vessel  seized  should  receive  indemnity  for  the  loss,  inconvenience, 
and  delay  w^hich  it  has  suffered.  It  is  also  recognized  that  the  vessel 
while  innocent  may  appear  to  be  guilty,  and  that  the  captor  has  a 
right  to  demand  that  the  vessel  be  clearly  innocent.  This  would  not 
be  the  case  if  the  papers  were  irregular,  if  the  vessel  were  far  out  of 
its  course  and  near  a  blockaded  port,  or  otherwise  evidently  open  to 
suspicion.  Such  grounds  might  justify  the  belligerent  in  taking  the 
vessel  to  a  prize  court,  but  might  not  justify  condemnation  by  the 
court. 

That  the  rights  of  both  belligerents  and  neutrals  might  be  secured 
a  rule  in  accord  with  general  practice  was  formulated  to  the  effect 
that  when  the  seizure  of  a  ship  or  merchandise  is  declared  null  by  the 
prize  court,  or  if,  without  being  brought  to  judgment,  the  seizure  of 
the  vessel  is  not  sustained,  the  persons  interested  have  a  right  to 
indemnity  unless  there  have  been  sufificient  reasons  for  the  seizure  of 
ship  or  merchandise. 

Conclusion 

In  closing  this  report,  the  American  delegation  to  the  International 
Naval  Conference  desires  to  state  that  the  Declaration  adopted  by  the 
Conference,  defining  the  relations  between  belligerents  and  belliger- 
ents, and  between  belligerents  and  neutrals,  will,  without  interfering 
with  legitimate  belligerent  or  neutral  action,  remove  many  of  the 
reasons  for  international  friction  and  misunderstanding,  which  until 
the  present  time  have  frequently  existed.  Ten  Powers  have  reached 
an  agreement  upon  matters  which,  if  left  to  divergent  practice,  and 
solely  to  national  prejudice,  would  have  made  some  of  the  earnest 
hopes  of  the  conferences  at  The  Hague  and  the  desires  often  ex- 
pressed by  the  United  States  Government  impossible  of  realization. 

We  desire  to  recognize  the  uniform  courtesy  and  hospitality  of  the 
British  Government,  and  we  specially  desire  to  express  our  apprecia- 
tion of  the  great  assistance  rendered  to  us  in  many  ways  by  the  Ameri- 
can Ambassador  in  London,  and  by  the  various  members  of  the 
Embassy  staff. 


REPORT  OF  AMERICAN   DELEGATES  207 

We  have  the  honor  to  be,  sir. 

Your  obedient  servants, 

C.  H.  Stockton, 
George  Grafton  Wilson, 
Delegates  plenipotentiary  to  the  International  Naval  Conference. 

Ellery  C.  Stowell, 

Secretary  of  the   Delegation. 


Annex  A — Call  of  Conference  by  Great  Britain^ 


Annex  B — Rules  of  procedure 

1.  Plenipotentiary  and  non-plenipotentiary  delegates  have  equally 
the  right  of  speaking  in  the  discussions  of  the  Conference. 

2.  Secretaries  of  the  delegations  may  accompany  the  members  of 
their  delegation  at  all  the  sessions  of  the  Conference. 

3.  The  sessions  of  the  Conference  are  not  public.  Its  deliberations 
remain  strictly  confidential. 

4.  The  French  language  is  recognized  as  the  official  language  for 
the  deliberations  and  acts  of  the  Conference.  Speeches  delivered  in 
another  language  are  given  orally  in  outline  in  French. 


Annex    C — Statement    of   the    delegation    of   the    United   States   of 
America  regarding  the  "radius  of  action" 

The  American  delegation  accepts  in  principle  basis  No.  24  with  the 
reservation  that  the  belligerent  or  the  officer  in  command  of  the  block- 
ading force  shall  have  the  right  to  fix  the  length  of  the  radius  of 
action  which,  according  to  our  desire,  should  not  exceed  1,000  miles. 
The  radius  of  action  or  zone  of  operation  should  be  defined,  imme- 
diately upon  the  declaration  of  blockade,  by  the  officer  in  command 
of  the  blockading  force,  in  conformity  with  Article  18.  The  American 
delegation  does  not  wish  to  impose  upon  belligerents  set  rules  as  to 
the  length  of  radius  of  action,  but  simply  to  ask  the  right  to  fix  a 


1  Printed  ante,  p.  13. 


208  NAVAL  CONFERENCE  AT  LONDON 

maximum  of  1,000  miles  when  circumstances  so  demand.  The  dele- 
gation concurs  in  the  remarks  of  Rear  Admiral  Le  Bris  regarding  the 
nature  of  the  radius  of  action  to  vary  with  geographical  conditions, 
the  propinquity  of  neutral  ports  and  interests  of  neutral  commerce, 
as  well  as  with  the  force  employed. 

By  determining  the  area  of  the  zone  of  operation  the  delegation 
intends  to  ask  that  the  force  employed  be  proportionate  to  the  zone. 
No  country  has  been  more  steadfast  than  the  United  States  in  its 
opposition  to  paper  blockades  and  it  holds  that  the  force  charged  with 
the  duty  of  enforcing  the  blockade  must  be  proportionate  to  the  zone 
aflfected  thereby. 

The  delegation  adds,  in  explanation  of  the  wide  expanse  of  the 
desired  radius  of  action,  that  the  demand  rests  on  the  ground  that 
blockade  running  is  becoming  more  and  more  a  night  operation  and 
that  it  is  difficult  to  capture  a  vessel  before  daybreak  after  it  has  put 
to  sea.  The  final  chase  and  capture  take  place  where,  properly  speak- 
ing, the  outer  line  of  the  blockading  force  is  stationed.  The  distance 
of  that  line  varies  with  the  length  of  night  darkness  which  may  reach 
sixteen  hours,  and  the  speed  of  the  vessels,  which  may  reach  thirty 
knots.  The  distance  may  thus  represent  a  zone  of  480  miles,  and  even 
more  if  the  inner  line  be  very  far  from  the  entrance  of  the  port. 


Annex  D — Statement  of  the  delegation  of  the  United  States  regard- 
ing the  pursuit  of  ships  in  cases  of  blockade  running 

As  regards  Article  25,  the  delegation,  while  believing  that  the  article 
could  advantageously  be  combined  with  Article  24  so  as  to  deal  with 
the  question  of  blockade  as  a  whole,  accepts  the  article  under  the 
reservation  that  pursuit  is  considered  as  continuous  and  not  abandoned, 
in  the  meaning  of  the  article,  even  though  it  should  be  abandoned  by 
one  line  of  the  blockading  force  to  be  resumed  after  a  while  by  a  ship 
of  the  second  line  until  the  limit  of  the  radius  of  action  shall  have  been 
reached.  Under  certain  conditions  there  may  even  be  several  lines, 
each  one  with  its  respective  pursuit  zones. 


report  of  american  delegates  209 

Annex  E 

The  American  delegation  regrets  that  it  finds  it  necessary  to  make 
a  reservation  on  Article  1  of  the  rules  relative  to  the  transfer  of  the 
flag.    It  holds  that  a  rule  which  reads — 

The  transfer  of  a  hostile  vessel  to  a  neutral  flag,  effected  before 
the  opening  of  hostilities,  is  valid  unless  it  should  be  established 
that  the  transfer  was  effected  with  a  view  to  eluding  the  con- 
sequences that  go  with  the  character  of  a  hostile  vessel — 

does  not  agree  with  the  spirit  of  the  modern  rules  concerning  war, 
adopted  at  The  Hague,  whose  object  is — 

to  guarantee  the  safety  of  international  commerce  from  the  for- 
tunes of  war  and  wishing,  in  accordance  with  modern  practice, 
to  protect  as  far  as  possible  transactions  entered  into  in  good 
faith  and  in  progress  before  the  opening  of  hostilities. 

Neither  does  it  agree  with  the  principle  which  would  restrict  the 
effects  of  war  to  the  duration  of  hostilities. 

The  rule  as  proposed  seems  to  aim  at  depriving  business  men  of  the 
legitimate  advantages  of  their  foresight.  It  does  not  say  how  long 
the  vessel  shall  be  held  in  possession  before  the  opening  of  hostilities 
whereby  ocean  commerce,  lawful  per  se,  would  be  protected  against 
the  disadvantages  of  a  seizure. 

It  must  be  granted  that  a  merchant  may  in  time  of  peace  endeavor, 
by  a  sale  of  his  property  of  whatever  nature,  to  protect  himself  from 
certain  consequences  flowing  from  the  opening  of  hostilities.  This 
may  apply  to  a  ship  as  well  as  to  any  other  form  of  property. 

The  proposed  rule  would  have  a  boundless  retroactive  effect. 

The  main  object  of  a  rule  concerning  a  transfer  of  the  flag  before 
the  opening  of  hostilities  is  to  preclude  transfers  that  are  not  hona 
ade  commercial  transactions. 

It  seems  to  the  American  delegation  that  this  object  could  be  achieved 
by  adopting  some  rule,  as  the  following: 

A  transfer  effected  before  the  beginning  of  the  war  is  valid  if 
absolute,  complete,  in  good  faith,  and  in  accordance  with  the  law 
of  the  countries  concerned,  and  if  its  effect  is  that  neither  the  dis- 
posal of  the  ship  nor  the  profit  derived  from  its  use  remains  in 
the  same  hands  as  before  the  transfer. 

If  the  captor  can  prove  that  the  above-mentioned  conditions 
have  not  been  fulfilled,  the  transfer  shall  be  presumed  to  have  been 
interposed  with  the  intent  of  eluding  the  consequences  of  war  and 
shall  be  void. 


Instructions  Addressed  to  the  British  Delegates  by  Sir  Edward 

Grey  ^ 

Sir  Edzvard  Grey  to  Lord  Desart 

Foreign  Office^  December  i,  1908. 
My  Lord, 

Under  the  terms  of  a  Royal  Commission,  dated  the  9th  ultimo,  the 
King  has  been  graciously  pleased  to  intrust  your  Lordship  with  the  duty 
of  representing  Great  Britain  as  His  Majesty's  Plenipotentiary  at  the 
conference  in  which  His  Majesty's  Government  has  invited  the  chief 
naval  Powers  to  take  part,  with  the  view  of  formulating  and  placing 
on  record  by  common  agreement  those  principles  of  international  law 
in  matters  of  prize  which  are  generally  recognized  as  governing  the 
usages  of  naval  warfare.  Your  Lordship  will  be  assisted  by  Rear- 
Admiral  Sir  Charles  Ottley,  K.C.M.G.,  M.V.O.,  Secretary  to  the  Com- 
mittee of  Imperial  Defence ;  Rear-Admiral  E.  J.  W.  Slade,  M.V.O., 
Director  of  Naval  Intelligence ;  and  by  Mr.  Eyre  Crowe,  C.B.,  and 
Mr.  C.  J.  B.  Hurst,  C.B.,  of  His  Majesty's  Foreign  Office,  in  the 
capacity  of  British  Delegates. 

2.  Before  setting  out  the  instructions  by  which  His  Majesty's  Gov- 
ernment desire  the  British  delegates  to  be  guided  in  their  discussions 
with  the  representatives  of  the  other  Powers,  I  desire  to  recall  the  cir- 
cumstances which  have  led  to  the  assembly  of  the  conference.  Among 
the  international  agreements  negotiated  at  the  second  Peace  Confer- 
ence at  The  Hague  in  1907,  perhaps  the  most  important,  certainly  one 
of  the  most  far-reaching  in  its  effects,  was  the  convention  relative  to 
the  establishment  of  an  international  prize  court.  The  7th  article 
of  that  convention  lays  down  that  where,  in  any  particular  case  brought 
before  the  international  court,  the  question  at  issue  is  not  governed  by  a 
treaty  binding  upon  the  parties,  the  court  "shall  apply  the  rules  of  in- 
ternational law.  If  no  generally  recognized  rules  exist,  the  court  shall 
give  judgment  in  accordance  with  the  general  principles  of  justice  and 
equity."  A  stipulation  of  this  nature  was  unanimously  agreed  by  all 
the   Powers   represented  at  the   second   Peace   Conference  to  be  an 


''■British  Parliamentary  Paper,  Miscellaneous,  No.  4  (1909),  p.  20.    [Cd.  4554.] 


INSTRUCTIONS   TO   BRITISH   DELEGATES  211 

essential  feature  of  any  system  of  international  jurisdiction  in  matters 
of  prize  which  could  have  practical  value. 

3.  It  was  the  intention  of  the  framers  of  the  convention — among 
whom  the  British  representatives,  acting  on  the  instructions  of  His 
Majesty's  Government,  took  a  leading  part — to  endeavour  to  secure  an 
understanding  between  the  Powers  as  to  the  general  principles  of  law 
recognized  by  them  to  be  binding  upon  their  respective  national  prize 
courts  in  the  more  important  questions  that  might  come  before  the 
international  court  on  appeal,  leaving  it  to  that  court  to  apply  those 
same  principles  to  the  special  circumstances  of  each  particular  case  in 
accordance  with  the  canons  of  justice  and  equity.  Unexpected  diffi- 
culties were  found  to  be  in  the  way  of  the  immediate  realization  of  this 
object,  due  chiefly  to  the  disadvantage  inherent  perhaps  in  any  process 
of  negotiation  in  which  every  one  of  the  independent  States  of  the 
world  takes  a  direct  part,  and  also  to  the  want  of  time  remaining  avail- 
able after  the  protracted  negotiations  for  the  creation  of  an  Inter- 
national Court  had  been  brought  to  a  successful  conclusion.  The  com- 
munications, however,  which  passed  at  the  time  between  the  delegates 
of  the  principal  naval  Powers  interested,  justified  the  belief  that,  after 
a  period  of  time  devoted  to  further  study  and  interchange  of  views,  a 
satisfactory  agreement  could  be  arrived  at,  by  which  any  uncertainty  of 
vagueness  as  to  the  principles  which,  under  article  7  of  the  prize  court 
convention,  would  be  applied  by  the  International  Court,  would  be  re- 
moved, and  substantial  security  afforded  that,  those  principles  having 
been  definitely  laid  down,  they  would  be  uniformly  applied  in  all  cases. 
Several  of  the  naval  Powers  gave  it  clearly  to  be  understood  that  their 
ultimate  acceptance  of  the  jurisdiction  of  the  international  Prize  Court 
would  necessarily  depend  on  such  security  being  obtained. 

4.  Having  regard  to  the  importance  attached  by  His  Majesty's  Gov- 
ernment to  the  setting  up  of  that  Court,  they  decided  to  take  the  initia- 
tive in  inviting  the  co-operation  of  the  Powers  whose  belligerent  rights 
would  be  most  affected,  in  formulating  in  precise  terms  a  set  of  rules 
relative  to  the  law  of  prize,  which  should  be  recognized  as  embodying 
doctrines  held  to  be  generally  binding  as  part  of  the  existing  law  of 
nations.  In  February  last  I  accordingly  submitted  to  the  respective 
Governments  a  list  of  questions  on  which  His  Majesty's  Government, 
after  careful  examination,  considered  that  an  understanding  should  if 
possible  be  reached,  and  which  would  therefore  appropriately  consti- 
tute the  programme  of  a  special  naval  conference  to  meet  in  London 
this  autumn.    These  questions  were  the  following : — 


212  NAVAL  CONFERENCE  AT  LONDON 

(a)  Contraband,  including  the  circumstances  under  which  par- 
ticular articles  can  be  considered  as  contraband ;  the  penalties  for 
their  carriage ;  the  immunity  of  a  ship  from  search  when  under 
convoy;  and  the  rules  with  regard  to  compensation  where  vessels 
have  been  seized  but  have  been  found  in  fact  only  to  be  carrying 
innocent  cargo ; 

(b)  Blockade,  including  the  questions  as  to  the  locality  where 
seizure  can  be  effected,  and  the  notice  that  is  necessary  before  a 
ship  can  be  seized ; 

(c)  The  doctrine  of  continuous  voyage  in  respect  both  of  con- 
traband and  of  blockade ; 

(d)  The  legality  of  the  destruction  of  neutral  vessels  prior  to 
their  condemnation  by  a  Prize  Court; 

(e)  The  rules  as  to  neutral  ships  or  persons  rendering  "un- 
neutral service"  ("assistance  hostile")  ; 

(/)  The  legality  of  the  conversion  of  a  merchant-vessel  into 
a  war-ship  on  the  high  seas ; 

(g)  The  rules  as  to  the  transfer  of  merchant-vessels  from  a 
belligerent  to  a  neutral  flag  during  or  in  contemplation  of  hostili- 
ties; 

(/j)  The  question  whether  the  nationality  or  the  domicile  of  the 
owner  should  be  adopted  as  the  dominant  factor  in  deciding 
whether  property  is  enemy  property. 

5.  The  proposals  of  His  Majesty's  Government  met  with  a  gratifying 
reception.  The  careful  study  of  the  information  obtained  from  a  con- 
fidential exchange  of  views  between  the  several  Powers  revealed  an 
extent  of  common  ground  which  encouraged  the  hope  that  no  insuper- 
able difficulties  would  be  found  in  stating,  in  terms  acceptable  to  the 
great  naval  Powers,  the  broad  principles  governing  the  rights  and  duties 
of  belligerents  and  neutrals  in  matters  of  prize.  The  end  in  view  being 
certainty  and  uniformity  as  regards  the  application  of  those  principles 
in  all  cases  brought  before  the  International  Court,  His  Majesty's  Gov- 
ernment laid  stress  from  the  outset  on  the  importance  of  giving,  as  far 
as  possible,  to  any  agreement  to  be  reached  the  character  and  form  of 
a  declaration  setting  out  at  least  the  most  important  of  the  existing 
rules  of  international  law  recognized  as  being  at  present  of  general  ap- 
plication. An  alternative  course  was  favoured  by  some  of  the  other 
Powers.  They  proposed  that  a  code  of  rules  should  be  agreed  upon  as 
binding  on  the  contracting  parties  in  case  of  war  between  two  or  more 
of  them,  and  then  only  on  condition  of  reciprocity,  no  distinction  being 
made  between  rules  already  acknowledged  by  the  concensus  of  nations 


INSTRUCTIONS   TO   BRITISH   DELEGATES  213 

to  be  of  general  validity,  and  others  introducing  new  elements  not 
hitherto  admitted  to  have  the  force  of  international  law.  The  results 
to  be  obtained  from  the  adoption  of  this  course  did  not  appear  to  His 
Majesty's  Government  likely  to  produce  a  result  which  would  effectually 
guarantee  the  application  of  known  rules  by  the  International  Court. 
On  the  other  hand,  any  proposition  of  law  enunciated  by  the  chief  naval 
Powers  as  expressing,  in  their  opinion,  the  existing,  correct,  and  general 
rule  in  the  matter,  would,  they  are  convinced,  carry  such  weight  that 
its  uniform  enforcement  could  be  almost  certainly  relied  upon.  It 
would,  no  doubt,  be  open  to  the  International  Court,  in  any  particular 
case,  to  examine  into  the  question  whether  the  rule,  as  stated,  did  in 
fact  correctly  embody  a  generally  accepted  principle  of  the  law  of 
nations,  but  it  is  difficult  to  believe  that  the  Court  would  hold  that 
such  rule  was  not  generally  recognized  when  the  nations  whose  courts 
and  whose  practice  have  almost  exclusively  determined  the  course  of 
evolution  of  international  law,  and  which  between  them  appoint  the 
majority  of  the  judges  of  the  Court,  had  unanimously  declared  that  the 
rule  was  in  fact  of  general  application. 

6.  His  Majesty's  Government  are  far  from  wishing  to  preclude  the 
discussion  at  the  conference  of  any  new  rules  which  may  be  proposed. 
They  are,  on  the  contrary,  themselves  anxious  to  promote  an  agreement 
on  certain  subsidiary  questions  in  respect  to  which  they  think  it  would 
be  impossible  at  present  to  state  a  common  principle  as  already  accepted. 
With  these  matters,  and  with  others  that  may  arise  in  the  course  of  the 
negotiations,  His  Majesty's  Government  are  ready  to  deal  by  way  of  a 
convention,  which  would  embody  admittedly  new  rules  and  be  ancillary 
to  the  proposed  declaration.  As  regards,  however,  those  primary  ques- 
tions which  vitally  affect  the  position  of  this  country  as  a  possible 
belligerent  in  a  naval  war,  they  would  find  it  difficult  to  be  satisfied 
with  any  merely  conventional  stipulations  of  limited  application,  that 
would  leave  it  uncertain  whether  the  International  Court  might  not  by 
its  decisions  introduce  rules  and  principles  of  naval  warfare  which 
would  unduly  fetter  the  operations  of  His  Majesty's  ships. 

7.  Influenced  by  these  considerations,  His  Majesty's  Government 
suggested  that  the  main  task  to  be  undertaken  by  the  conference  should 
be  the  drafting  of  a  declaration  in  terms  which  should  harmonize  as  far 
as  possible  the  views  and  interpretations  of  the  accepted  law  of  nations 
to  which  the  several  governments  had  given  expression.    His  Majest^'-'s 


214  NAVAL  CONFERENCE  AT  LONDON 

Government  are  disposed  to  think  that  the  divergences  apparent  in  the 
theories  and  doctrines  upheld  have,  in  many  cases,  not  been  maintained 
in  the  practice  actually  followed.  They  feel  moreover  that  the  fresh 
interpretation  which  must  inevitably  be  placed  on  many  old  rules  under 
the  altered  conditions  of  modern  navigation  and  warfare  will  naturally 
tend  still  further  to  diminish  differences  which  may  formerly  have  been 
acute,  but  which,  under  the  influence  of  changed  circumstances,  can  no 
longer  be  said  to  be  incapable  of  reconciliation.  Most  of  the  existing 
rules  date  from  a  time  when  the  operations  of  naval  war  as  well  as  all 
oversea  commerce  were  carried  on  in  sailing-vessels  of  comparatively 
modest  dimensions,  and  when  communication  by  electric  telegraph  was 
unknown.  Opposing  sets  of  rules  evolved  under  such  conditions  and 
tenaciously  upheld  and  perhaps  developed  by  rival  schools  of  national 
jurisprudence  during  long  periods  happily  marked  by  an  absence  of  any 
occasion  to  put  them  afresh  to  the  only  real  and  effective  test  of  war, 
have  since,  in  not  a  few  instances,  become  practically  meaningless  and 
inapplicable.  It  will,  His  Majesty's  Government  believe,  be  found  in 
such  cases  that,  by  going  back  to  first  principles,  common  ground  can 
often  be  reached  where,  under  the  stress  of  the  unifying  tendencies 
everywhere  at  work  in  equalizing  the  conditions  under  which  the  high- 
developed  system  of  modern  maritime  trade  and  intercourse  are  carried 
on,  the  former  opposition  of  doctrines  is  now  seen  to  be  unreal,  and  dis- 
cord gives  way  to  unity  not  only  of  interests  but  also  of  practice. 

8.  The  necessity  of  a  restatement  of  the  underlying  principles,  in 
words  adapted  to  present-day  circumstances,  thus  furnishes  both  the 
means  and  the  opportunity  of  arriving  by  common  agreement  at  a  uni- 
form definition  of  the  main  principles  of  the  existing  law,  to  whose 
spirit  all  nations  are  without  doubt  anxious  to  conform.  In  this  process 
of  adjustment  more  than  one  rule  can  probably  now  be  acknowledged  to 
have  a  claim  to  general  recognition,  in  regard  to  which  such  claim  may 
have  been  rightly  contested  in  former  times.  In  so  far  as  particular 
contentions,  having  their  origin  perhaps  in  the  rigid  application  of  a 
general  principle  to  the  requirements  of  the  day,  may  fall  to  the  ground 
on  the  emergence  of  an  entirely  different  state  of  things,  the  principle 
itself  may  now  be  reasserted  unfettered  by  special  limitations  or  excep- 
tions which  may  formerly  have  appeared  essential  to  some  nations. 
There  need  therefore  not  necessarily  be  any  real  contradiction  between 
the  vindication  of  such  limitations  or  exceptions  in  the  past,  and  their 


INSTRUCTIONS   TO   BRITISH    DELEGATES  215 

disappearance  from  the  fresh  restatement  of  the  principle  at  present. 

9.  Having,  in  the  foregoing,  explained  the  nature  of  the  problem  to 
be  solved  by  the  conference  as  it  presents  itself  to  His  Majesty's  Gov- 
ernment, and  the  method  which  they  consider  appropriate  to  its  solution, 
I  now  proceed  to  indicate  more  precisely  the  direction  in  which,  as 
regards  each  point  of  the  programme,  that  solution  should,  in  their 
opinion,  be  sought. 

(a)   Contraband 

10.  Any  proposal  tending  in  the  direction  of  freeing  neutral  com- 
merce and  shipping  from  the  interference  which  the  suppression  by 
belligerents  of  the  trade  in  contraband  involves,  should  receive  your 
sympathetic  consideration,  and,  if  not  otherwise  open  to  objection,  your 
active  support.  It  became  clear  at  the  second  Peace  Conference  that 
there  was  no  prospect  of  securing  in  the  near  future  the  acceptance  of 
the  principle  of  total  abolition  of  contraband  by  the  more  important 
naval  Powers ;  but  a  proposal  then  put  forward  by  the  United  States  for 
giving  up  the  right  of  seizure  for  all  but  absolute  contraband,  is  believed 
to  be  regarded  with  considerable  favour.  Should  it  be  found  that  a 
renewal  of  such  a  proposal  would  now  prove  generally  acceptable.  His 
Majesty's  Government  would  welcome  the  conclusion  of  an  agreement 
to  that  effect.  Clearly,  however,  such  a  stipulation  could  find  no  place 
in  a  declaration  of  the  existing  law,  but  would  have  to  be  relegated  to 
the  projected  convention. 

11.  The  Declaration,  therefore,  will  have  to  recognize  the  existence 
of  both  absolute  and  conditional  contraband.  In  considering  its  terms 
it  should  be  borne  in  mind  that  what  the  commerce  of  the  world  above 
all  desires  is  certainty.  The  object  of  all  rules  on  this  subject  should  be 
to  ensure  that  a  trader  anxious  to  infringe  in  no  way  the  accepted  rights 
of  belligerents,  could  make  sure  of  not  being,  unwittingly,  engaged  in 
the  carriage  of  contraband,  and  of  thus  avoiding  the  danger  of  condem- 
nation and  loss  either  of  goods  or  ship,  while  the  trader  who  deliberately 
shipped  or  carried  contraband  would  do  so  with  a  knowledge  of  the 
risk  he  ran,  and  would  have  no  claim  to  sympathy  or  compensation  if 
his  ship  or  goods  were  captured  and  subsequently  condemned  by  the 
due  process  of  a  Prize  Court. 

12.  In  order  to  determine  what  is  absolute  contraband,  some  nations 
have  had  recourse  to  a  strict  definition  of  the  term;  others  to  an  ex- 
haustive and  particular  enumeration  of  all  classes  of  articles  comprised 


216  NAVAL  CONFERENCE  AT  LONDON 

in  it.  Attempts  at  definition  have  naturally  started  from  the  proposition 
that  the  expression  "absolute  contraband"  should  include  nothing  that 
could  be  used  for  any  but  war-like  purposes.  A  serious  difficulty,  how- 
ever, standing  in  the  way  of  the  general  acceptance  of  a  definition  in 
these  terms  is  the  fact  that  certain  things,  notably  horses  and  mules 
suitable  for  military  purposes,  have  been  held  by  most  countries  to  be 
absolute  contraband,  although  strictly  speaking  they  may  clearly  be  re- 
garded as  "ancipitis  usus."  In  order  to  allow  of  the  inclusion  of  such 
items,  the  definition  would  have  to  be  so  much  widened  that  many 
articles  would  thereby  be  brought  within  its  scope  which  ought  certainly 
not  be  allowed  to  be  classed  as  absolute  contraband.  For  this  reason 
there  has  been  a  growing  tendency  to  fall  back  upon  the  principle  of 
close  enumeration  as  more  satisfactory,  and  opinion  at  the  second  Peace 
Conference  was  unmistakably  favourable  to  this  view.  In  fact,  the 
agreement  provisionally  arrived  at  by  a  committee  of  that  conference  as 
to  the  items  of  which  a  list  of  absolute  contraband  should  properly  be 
composed,  was  at  the  time  acknowledged  to  give  very  accurate  expres- 
sion to  the  principle  underlying  the  actual  practice  of  different  coun- 
tries. Great  Britain  has  hitherto  committed  herself  neither  to  a  defini- 
tion nor  to  an  enumeration,  but  the  list  embodied  in  the  agreement  to 
which  I  have  referred,  substantially  accords  with  what  British  prize 
courts  have  always  adjudged  to  be  comprised  in  the  terms  "absolute 
contraband."  An  endeavour  should  therefore  be  made  to  get  that  list, 
which  I  here  subjoin,  accepted  as  a  correct  statement  of  the  existing  law 
of  nations, 

"(1)  Arms  of  all  kinds,  including  arms  for  sporting  purposes, 
and  their  component  parts. 

"(2)  Projectiles,  charges,  and  cartridges  of  all  kinds,  and  their 
component  parts. 

"(3)  Powders  and  explosives  designed  specifically  to  serve  war- 
like purposes. 

"(4)  Gun-mountings,  limber  boxes,  limbers,  military  waggons, 
field  forges,  and  their  component  parts. 

"(5)   Military  clothing  and  equipment. 

"(6)   Military  harness  of  all  kinds. 

"(7)  Saddle,  draught,  and  pack  animals  suitable  for  warlike 
purposes. 

"(8)   Camp  equipment,  and  the  component  parts. 

"(9)  Armour  plates. 


INSTRUCTIONS   TO   BRITISH   DELEGATES  217 

"(10)  Ships  and  vessels  of  war,  and  their  component  parts, 
provided  these  are  of  such  a  nature  as  can  only  be  used  on  a  ship 
of  war. 

"(11)  Instruments  and  apparatus  designed  exclusively  for  the 
manufacture  of  munitions  of  war,  for  the  manufacture  or  repair  of 
arms,  or  of  military  or  naval  warlike  material." 

13.  It  must  be  doubted  whether  a  rule,  known  to  be  favoured  by 
some  of  the  Powers,  under  which  additions  to  an  established  list  of 
absolute  contraband  would  be  either  prohibited  altogether  or  allowed 
only  conditionally  on  notice  previously  given,  could  be  brought  within 
the  purview  of  the  Declaration.  It  appears  to  be  generally  agreed  that 
no  such  addition  ought  in  any  case  to  be  admissible,  except  in  the  case 
of  articles  which  can  not  be  utilized  for  other  than  warlike  purposes.  A 
rule  to  this  effect,  or,  preferably,  a  rule  preventing  any  additions 
whatever  at  the  outbreak  or  after  the  commencement  of  war,  might 
well  form  part  of  the  proposed  convention. 

14.  The  preparation  of  a  list  of  conditional  contraband  presents 
greater  difficulties,  because,  looking  to  the  complex  requirements  of  a 
navy  or  an  army,  and  the  conditions  of  modern  warfare,  almost  any 
article  going  to  the  armed  forces  of  a  belligerent  might  plausibly  be 
contended  to  be  capable  of  acquiring  a  contraband  character.  The 
primary  characteristic  of  conditional  contraband  is  its  warlike  destina- 
tion, and  in  drafting  any  rules  on  the  subject,  care  should  be  taken  to 
insure  that  condemnation  should  in  no  case  be  allowed  unless  there 
was  such  evidence  as  would  establish,  or  lead  to  the  overwhelming 
presumption,  that  the  destination  of  the  goods  was  for  the  armed  forces 
of  the  enemy,  and  not  for  the  civil  population  of  a  place  occupied  by 
such  forces.  Whether  a  rule  requiring  each  Power  to  publish,  during 
peace,  a  list  of  what  it  intends  to  treat  as  conditional  contraband  would 
turn  out  to  be  of  much  value  seems  rather  doubtful.  Any  Government 
wishing  to  reserve  as  wide  a  power  as  possible  in  this  direction  would 
either  include  a  large  number  of  articles,  or  would  use  general  words 
covering  almost  anything  which,  when  the  time  came,  it  might  desire  to 
treat  as  conditional  contraband.  An  agreement  to  publish  a  list  in 
advance  would  therefore  in  practice  appear  valuable  only  in  so  far  as 
it  constituted  a  recognition  of  the  fact  that  it  is  not  every  article  going 
to  a  place  occupied  by  the  armed  forces  of  a  belligerent  that  can  be 
treated  as  conditional  contraband. 


218  NAVAL  CONFERENCE  AT  LONDON 

15.  As  regards  the  question  of  destination  as  a  necessary  element  of 
the  contraband  character  of  particular  goods,  His  Majesty's  Govern- 
ment believe  the  more  widely  established  rule  to  be  that  the  destination 
of  the  contraband  cargo,  and  not  that  of  the  vessel  by  which  it  is  con- 
veyed, is  the  decisive  factor.  In  other  words :  it  may  be  laid  down  that 
the  fact  of  the  destination  of  the  carrying  ship  being  a  neutral  port  will 
not  relieve  the  cargo  from  condemnation  if  it  is  established  that  the 
contraband  did  in  fact  possess  a  belligerent  destination.  This  principle 
may  rightly  be  extended  not  only  to  cases  where  the  contraband  is  to  be 
carried  on  to  the  enemy  after  transihpment,  but  also  to  cases  where 
the  goods  are  forwarded  by  land  transit  through  neutral  territory. 

16.  Contraband  cargo  is  by  general  agreement  liable  to  condemnation, 
and  it  would  appear  to  be  equitable  that  non-contraband  cargo  belonging 
to  the  owner  of  the  contraband  should  also  be  subject  to  condemnation. 
Innocent  cargo,  on  the  other  hand,  belonging  to  other  persons  uncon- 
cerned with  the  contraband  venture  should  be  released,  the  owners 
having,  however,  no  claim  to  anything  more  than  the  restitution  of  their 
goods. 

17.  The  views  of  the  various  Powers  as  to  the  liability  of  the  ship 
carrying  the  contraband  cargo  are  not  altogether  in  accord.  The  British 
principle,  speaking  generally,  is  that,  apart  from  any  interest  of  the 
shipowners  in  the  contraband  cargo,  liability  to  condemnation  depends 
on  the  existence  of  forcible  resistance  or  false  papers.  The  continental 
Powers,  however,  generally  import  a  condition  that  if  the  contraband 
forms  either  in  value  or  in  bulk  more  than  a  given  proportion  of  the 
entire  cargo  the  ship  will  be  liable  to  condemnation.  It  seems  to  His 
Majesty's  Government  that  there  is  much  to  be  said  for  this  view.  It  is 
certainly,  on  the  whole,  favourable  to  neutrals,  assuming  the  proportion 
so  fixed  to  be  sufficiently  large.  It  is  not  probable  that  a  shipowner  or 
master  could  be  ignorant  of  the  character  and  purpose  of  goods  forming 
the  bulk  of  the  cargo,  or  the  larger  proportion  of  its  value  (on  which 
freight  was  paid),  and  thus  the  presumption  would  seldom  operate  un- 
justly to  the  shipowner,  while  where  the  contraband  formed  but  a 
small  proportion  of  the  cargo,  whether  in  bulk  or  in  value,  it  would  be 
of  advantage  to  him,  and  to  commerce  generally,  that  its  carriage  should 
not  involve  the  condemnation  of  the  vessel.  An  agreement  would 
therefore  not  be  unreasonable  under  which  ships  would  be  condemned 
for  the  carriage  of  contraband  where  (a)  the  contraband  was  owned  by 


INSTRUCTIONS   TO   BRITISH    DELEGATES  219 

the  shipowner  or  captain,  or  (b)  where  it  formed  at  least  one-half  of 
the  cargo  either  in  bulk  or  value,  or  (c)  where  knowledge  on  the  part  of 
the  shipowner  or  master  of  the  contraband  and  its  destination  was  a 
necessary  deduction  from  the  circumstances  in  which  the  contraband 
was  carried.  The  shipowner  should  be  declared  to  be  entitled  to  com- 
pensation in  all  cases  where  no  contraband  was  found  on  board,  unless 
the  Prize  Court  held  that  there  was  good  cause  for  bringing  the  ship  in 
for  adjudication, 

18.  The  question  of  the  right  to  visit,  search,  and  seize  neutral  ships 
when  under  convoy  is  one  on  which  there  has  been  a  clear  divergence 
between  the  old  continental  system  and  the  British  doctrine.  That  doc- 
trine has,  however,  not  been  enforced  in  any  recent  war.  In  1854  the 
right  to  visit  ships  under  convoy  was  specifically  waived,  owing  to  the 
difficulty  inherent  in  naval  co-operation  with  an  allied  Power  which 
did  not  recognize  that  right.  Nor  have  His  Majesty's  Government  since 
attempted  to  exercise  it.  The  situation  was  radically  changed  by  the 
Declaration  of  Paris,  which  put  an  end  to  the  right  formerly  enjoyed, 
of  seizing  enemy  goods  other  than  contraband,  under  whatever  flag 
carried,  and  His  Majesty's  Government  are  now  desirous  of  limiting  as 
much  as  possible  the  right  to  seize  for  contraband,  if  not  eliminating 
it  altogether.  In  proportion  as  the  lists  of  contraband  are  reduced — 
and  there  is  good  ground  for  hoping  that  this  will  be  successfully  done 
in  a  large  measure — the  value  of  the  right  to  seize  for  contraband  auto- 
matically diminishes.  Whilst  accordingly,  on  the  one  hand,  the  impor- 
tance to  a  belligerent  of  the  right  to  seize  vessels  under  convoy  has  lost 
most  of  its  value,  the  principle  of  exemption  is,  on  the  other  hand, 
favourable  to  neutral  trade,  and  in  conformity  with  the  spirit  of  British 
policy.  This  is  therefore  one  of  the  cases  where,  owing  to  the  force 
of  changing  circumstances,  the  original  British  contention  has  prac- 
tically lost  its  importance,  so  that  its  specific  abandonment  would  efifect 
no  substantial  alteration  in  the  actual  situation,  and  may  very  well  be 
admitted  to  be  little  more  than  the  formal  acknowledgment  of  a  now 
generally  accepted  rule. 

(b)   Blockade 

19.  It  is  a  matter  of  general  agreement  that  a  blockade  must  be 
efifective,  and  that  its  existence  and  extent  must  be  notified ;  but  there 
have  been  differences  of  opinion  as  to  what  is  an  effective  blockade, 
what  is  a  sufficient  notification,  and  when  and  where  a  ship  going  to  or 


220  NAVAL  CONFERENCE  AT  LONDON 

coming  out  of  a  blockaded  port  may  be  captured  and  brought  in.  These 
questions  are  all  closely  connected,  and  a  satisfactory  solution  of  them 
is  of  extreme  importance  to  a  State  like  Great  Britain,  whose  absolute 
dependence  on  the  possession  of  sea  power  for  security  makes  it  im- 
perative for  her  to  maintain  intact  the  weapon  of  offence  which  the 
possibility  of  effectually  blockading  an  enemy's  coasts  places  in  the 
hands  of  a  nation  having  command  of  the  sea. 

20.  By  a  declaration  of  blockade,  the  blockading  Power  forbids  ac- 
cess to  the  blockaded  coast,  and  the  Declaration  of  Paris  accordingly 
makes  the  recognition  of  a  state  of  blockade  dependent  on  the  effective- 
ness with  which  such  access  is  prevented.  So  much  is  common  ground. 
It  is  in  respect  to  the  means  by  which  it  is  sought  to  prevent  access 
that  a  divergence  seems  to  exist  between  the  English  and  the  continental 
points  of  view.  There  has  been  a  wide-spread  impression  that  the  op- 
posing views  are  totally  irreconcilable,  but  a  careful  and  systematic 
examination  of  all  reported  British  cases  has  convinced  His  Majesty's 
Government  that  the  divergence  is  the  result  not  so  much  of  differing 
practices  as  of  theories  constructed  by  jurists  in  order  to  justify  the 
executive  measures  adopted  by  belligerents,  and  of  deductions  some- 
what hastily  drawn  from  the  language  employed  in  the  decisions  of  the 
Prize  Courts.  Obviously,  were  actual  attainment  to  the  blockaded  coast 
to  be  alone  recognized  as  the  offence  which  justified  capture,  the  main- 
tenance of  a  blockade  would  become  impossible.  Consequently,  some 
other  ground  for  capture  must  be  admitted.  Under  the  system  prac- 
tised by  the  continental  nations  a  "line  of  blockade"  is  created,  and  the 
offence  is  defined  as  the  act  of  crossing  this  line.  According  to  the 
English  definition,  the  offence  consists  in  the  attempt  to  reach  the 
blockaded  coast,  and  it  has  been  laid  down  that  the  act  of  sailing  towards 
that  coast  with  the  intention  of  reaching  it  constitutes  an  attempt. 
Against  the  former  system  it  has  been  urged  that  the  line  of  blockade 
is  purely  arbitrary  and  bears  no  fixed  relation  to  the  coast  blockaded, 
while  the  latter  system  has  been  characterized  as  an  endeavour  to  attach 
penal  consequences  to  what  is  only  an  intention.  In  truth,  both  systems 
are  to  some  extent  arbitrary,  but  this  is  the  unavoidable  result  of  the 
impossibility  of  maintaining  a  blockade  without  resort  to  some  such 
method  of  procedure.  In  course  of  time  these  systems  appear  to  have 
become  stereotyped  by  jurists  to  such  an  extent  that  the  reasons  for 
their  existence  and  the  practices  from  which  they  were  deduced  have 
been  lost  sight  of,  with  the  result  that  claims  have  from  time  to  time 


INSTRUCTIONS  TO   BRITISH   DELEGATES  221 

been  put  forward  by  the  advocates  of  either  system  which  have  met 
with  serious  opposition,  and  which  are  probably  quite  unwarranted. 
For  instance,  it  has  been  said  on  the  one  side  that  a  ship  is  liable  to 
capture  the  moment  she  has  left  her  port  of  departure,  however  far 
she  may  be  from  the  blockaded  coast ;  while,  on  the  other,  it  has  been 
maintained  that  a  ship  can  not  be  captured  at  any  point  unless  the 
blockade  is  "effective  at  that  point,"  that  is  to  say,  only  when  she  is  in 
the  act  of  crossing  a  line  which  is  itself  effectively  guarded.  To  adopt 
the  former  view  is  to  prohibit  a  ship  from  starting  with  the  blockaded 
port  as  an  alternative  destination,  which  may  be  abandoned  if,  on  ap- 
proaching the  neighbourhood  of  that  port,  she  should  ascertain  that  it 
is  still  blockaded.  To  adopt  the  latter  view  is  to  throw  on  the  blockad- 
ing force  the  onus  of  covering  some  line  other,  and  probably  much 
more  extended,  than  the  blockaded  coast,  although  it  is  only  actual 
access  to  that  coast  which  need  be  prevented  in  order  to  make  the 
blockade  effective. 

21.  To  turn  from  theory  to  practice:  In  order  that  blockade  run- 
ners may  be  effectively  stopped,  there  must,  among  other  things,  be  an 
arrangement  by  which  they  are  prevented  from  slipping  by  under  cover 
of  darkness.  This  implies  such  a  disposal  of  the  blockading  squadrons 
as  to  insure  that  a  vessel  attempting  to  break  the  blockade  would  have 
to  pass  either  outer  or  inner  lines  or  groups  of  blockading  ships  in  the 
daytime.  Whilst  in  this  way  the  several  lines  together  could  make  the 
blockade  effective,  it  might  quite  possibly  be  said  that  no  one  line  alone 
constituted  an  effective  guard  at  the  spot  where  it  was  stationed.  In 
such  circumstances,  the  theoretical  rule  that  no  ship  of  the  blockading 
fleet  can  properly  effect  a  capture  unless  the  blockade  is  effective  at  the 
point  where  the  ship  is  stationed,  in  other  words,  unless  vessels  which 
may  pass  it  at  any  time  would  almost  certainly  be  stopped,  clearly  be- 
comes impossible  of  execution.  As  regards  the  practical  application 
of  the  other  system,  an  attentive  examination  of  all  the  reported  cases 
in  the  British  prize  courts  relative  to  questions  of  blockade  has  shown 
that,  while  the  principle  of  liability  to  seizure  at  any  point  of  a  voyage 
to  or  from  a  blockaded  port  or  coast  has  been  maintained  in  theory, 
there  is,  in  fact,  no  such  case  in  which  a  vessel  has  been  condemned  for 
breach  of  blockade  except  when  actually  close  to,  or  directly  approach- 
ing, the  blockaded  port  or  coast.  The  possibility  of  change  of  destina- 
tion and  other  circumstances  have  always  been  taken  into  consideration, 
with  the  result  that,  except  in  cases  which  admitter"  of  no  doubt  as  to 


222  NAVAL   CONFERENCE  AT  LONDON 

the  immediate  intentions  of  the  vessel,  she  has  invariably  been  released. 
Thus,  in  practice,  the  British  Courts  have  acted  on  a  rule  which  closely 
approximates  to  that  upheld  by  continental  Governments  if  freed  from 
the  impracticable  interpretations  and  deductions  vi^ith  which  the  latter 
has  been  overlaid  by  an  extreme  school  of  jurists.  It  therefore  appears 
to  His  Majesty's  Government  that  it  ought  not  to  be  impossible  to  give 
suitable  expression  to  the  common  principle. 

22.  A  blockading  fleet  will,  in  general,  station  itself  at  such  a  distance 
from  the  blockaded  coast  as  will  render  it  reasonably  secure  from  attack 
from  that  coast.  This  distance  is  likely,  under  modern  conditions  of 
war,  to  be  considerable,  and  the  blockading  ships  would  probably  be 
disposed  in  two  or  more  lines  or  groups.  The  French  Government  have 
recently  defined  the  area  within  which  vessels  may  be  seized  for  breach 
of  blockade,  to  be  the  "rayon  d' action  of  the  vessels  charged  with  the 
duty  of  insuring  the  effectiveness  of  the  blockade."  If  the  rayon 
d'action  may  be  defined  as  the  area  of  operation  of  the  blockading  force, 
His  Majesty's  Government  would  be  disposed  to  accept  a  rule  to  the 
above  effect  as  fairly  representing  the  actual  practice  of  both  the  rival 
systems,  and  therefore  capable  of  being  described  as  of  general  appli- 
cation. Such  a  rule  would  safeguard  all  belligerent  rights  in  regard  to 
blockade  which  Great  Britain  has  been  able  practically  to  assert  in 
former  wars,  whilst  it  would  at  the  same  time  reassure  neutrals  that 
their  ships  would  not  be  captured  until  actually  approaching  the  waters 
in  which  the  blockade  was  effectively  maintained. 

23.  There  arises  in  this  connection  the  question  as  to  the  limit  of 
distance  or  time  up  to  which  the  pursuit  of  a  vessel  that  has  broken 
blockade  outwards  may  be  continued.  According  to  the  British  theory, 
the  vessel  would  remain  liable  to  pursuit  and  capture  until  she  had 
reached  the  terminal  point  of  her  homeward  voyage.  The  opposing 
school  holds  that  the  right  to  pursue  and  capture  ceases  when  the  pur- 
suit has  been  abandoned.  His  Majesty's  Government  are  advised  that 
the  acceptance  of  the  latter  view  would  not  be  likely  to  inflict  any  mate- 
rial injury  on  the  interests  of  Great  Britain.  They  therefore  consider 
that  it  will,  not  be  necessary  to  insist  on  the  rigorous  adoption  of  the 
British  principle  on  this  point. 

24.  It  is  universally  accepted  that  a  blockade  must  be  notified,  by  the 
Government  declaring  it,  to  all  neutral  Powers,  andl)y  the  officer  com- 
manding the  blockading  force,  to  the  local  authorities  of  the  adjacent 
countries.     According  to  the  view  uniformly  upheld  by  the  British 


INSTRUCTIONS   TO   BRITISH   DELEGATES  223 

courts,  and  adopted  by  most  of  the  Powers,  the  notification  of  the  bel- 
ligerent Government  to  a  neutral  Power  is  considered  to  affect  with 
knowledge  of  the  blockade  a  ship  sailing  to  the  blockaded  port  when 
sufficient  time  has  elapsed  for  the  neutral  Power  to  make  the  existence 
of  the  blockade  known  in  its  territory  before  the  sailing  of  that  vessel, 
or  when  the  existence  of  the  blockade  was  notorious  at  the  port  of  de- 
parture when  the  vessel  left.  Some  of  the  Powers,  however,  have  re- 
quired, in  addition,  a  special  notice  to  be  given  by  a  belligerent  cruiser 
to  the  vessel  herself  when  on  her  way  to  the  blockaded  port,  and  to  be 
entered  on  her  papers.  It  has  been  contended  in  support  ot  this  con- 
tention that  a  ship,  even  if  sailing  with  a  knowledge  of  the  blockade, 
may  justifiably  continue  her  course  to  the  blockaded  port  in  the  hope 
that  at  the  time  of  her  arrival  the  blockade  may  have  come  to  an  end. 
Its  effect  in  practice  is  that  any  ship  may  with  impunity  make  a  first 
attempt  to  run  a  blockade,  because,  even  if  stopped,  she  would  incur 
no  risk  of  capture  or  condemnation,  and  could  either  abandon  the  at- 
tempt without  any  penalty,  or  renew  it  on  a  favourable  occasion. 
Whatever  force  there  may  have  been  in  the  argument  in  favour  of  such 
a  rule  in  the  days  of  sailing-ships,  when  the  means  of  communication 
by  telegraph  and  otherwise  were  very  different  from  those  which  now 
obtain,  it  is  almost  impossible  to  suppose  that  under  present  conditions 
the  existence  of  any  blockade  would  not  be  perfectly  well  known  to  all 
ship-owners;  and  it  would  rarely  occur  that  a  voyage  pursued  without 
any  communication  with  land  would  be  of  such  duration  as  to  validate 
the  excuse  that  a  ship  was  not  aware  of  the  continuance  of  a  blockade 
of  which  she  had  had  an  opportunity  of  knowing  before  she  originally 
sailed.  The  case  for  special  and  individual  notice,  therefore,  is  not  now 
a  strong  one,  and  His  Majesty's  Government  can  not  see  any  injustice 
or  hardship  in  a  rule  making  any  ship  attempting  to  reach  a  blockaded 
coast  which  has  sailed  after  the  public  notification  by  the  belligerent  to 
the  neutral  Power,  liable  for  breach  of  blockade.  They  trust  that  this 
view  will  now  no  longer  be  opposed  by  the  Powers  which  have  hitherto 
maintained  the  necessity  of  a  special  notice  to  the  ship  herself,  and  that 
it  will  be  definitely  accepted  by  the  Conference. 

(c)  Continuous  Voyage 

25.  The  principle  underlying  the  doctrine  of  continuous  voyage  is 
not  of  recent  origin,  and  may  be  regarded  as  a  recognized  part  of  the 
law  of  nations.     Its  application  to  vessels  carrying  contraband  has 


224  NAVAL  CONFERENCE  AT  LONDON 

already  been  incidentally  explained  in  paragraph  15  of  the  present  in- 
structions, as  justifying  the  seizure  of  any  neutral  ship  carrying  a  con- 
traband cargo  which  is  in  fact  destined  for  enemy  territory,  whether  the 
cargo  was  to  be  carried  to  such  territory  by  the  ship  herself,  or,  after 
transshipment,  by  another  vessel,  or  by  overland  transport  from  a 
neutral  port. 

26.  For  the  purposes  of  blockade,  on  the  other  hand,  the  destination 
justifying  capture  is  that  of  the  ship,  and  not  of  the  cargo ;  and  a  vessel 
whose  final  destination  is  a  neutral  port  can  not,  unless  she  endeavours, 
before  reaching  that  destination,  to  enter  a  blockaded  port,  be  con- 
demned for  breach  of  blockade,  although  her  cargo  may  be  earmarked 
to  proceed  in  some  other  way  to  the  blockaded  coast.  His  Majesty's 
Government  believe  that  all  the  Powers  will  probably  be  in  agreement 
on  this  point,  unless  the  United  States  were  to  maintain  that  the  con- 
demnation pronounced  by  their  Supreme  Court  in  the  well-known  case 
of  the  "Springbok"  extended  the  application  of  the  doctrine  of  con- 
tinuous voyage  to  breaches  of  blockade,  and  rendered  the  vessel  carrying 
a  cargo  destined  for  a  blocked  port  liable  to  seizure,  even  though  she 
herself  was  not  proceeding  to  such  port.  It  is,  however,  exceedingly 
doubtful  whether  the  decision  of  the  Supreme  Court  was  in  reality 
meant  to  cover  a  case  of  blockade-running  in  which  no  question  of 
contraband  arose.  Certainly,  if  such  was  the  intention,  the  decision 
would  pro  tanto  be  in  conflict  with  the  practice  of  the  British  courts. 
His  Majesty's  Government  see  no  reason  for  departing  from  that 
practice,  and  you  should  endeavour  to  obtain  general  recognition  of  its 
correctness. 

{d)  Destruction  of  Neutral  Prises 

27.  It  is  recognized  by  the  universally  acknowledged  principles  of 
international  law  that  all  prizes  ought,  if  possible,  to  be  brought  into  a 
Prize  Court,  and  ought  not,  generally  speaking,  to  be  destroyed  or  other- 
wise dealt  with  prior  to  condemnation.  It  is,  however,  generally  ad- 
mitted that  in  cases  in  which  the  captor  finds  himself  unable,  without 
compromising  his  own  safety  or  affecting  the  success  of  the  military 
operation  on  which  he  is  engaged,  or  owing  to  his  distance  from  any 
home  port,  to  bring  an  enemy  merchant-vessel  in,  he  may  destroy  her 
after  removing  the  passengers,  crew,  and  papers,  and  that  if  it  be  estab- 
lished that  she  is  in  fact  an  enemy  vessel,  such  destruction  involves  the 
captor  in  no  liability.    Even  in  such  cases,  His  Majesty's  Government 


INSTRUCTIONS   TO   BRITISH    DELEGATES  225 

have  some  doubt  whether  there  is  a  right  to  destroy  neutral  cargoes  on 
board  without  compensation,  a  doubt  which  the  terms  of  the  Declara- 
tion of  Paris,  under  which  neutral  goods  in  enemy  ships  not  being 
contraband  are  not  liable  to  seizure,  tend  to  confirm.  Primarily,  an 
enemy  ship  should  be  brought  in,  and  if  she  is,  before  adjudication, 
destroyed  for  the  convenience  of  the  captor  the  neutral  owner  of  cargo 
should  not  suffer  thereby. 

28.  Some  of  the  Powers  do  not  consider  this  right  of  destruction  in 
special  circumstances  to  be  limited  to  enemy  ships,  but  seek  to  extend 
it  to  neutral  merchant-vessels  suspected  to  be  carriers  of  contraband 
of  war.  They  declare  that  although  it  is  contrary  to  principle  to  de- 
stroy a  neutral  micrchant-vessel  instead  of  bringing  her  in,  such  a  course 
may  nevertheless  be  justifiable  in  exceptional  cases,  where  she  can  not 
so  be  brought  in  without  danger  to  the  captor  or  without  substantial 
interference  with  the  success  of  his  military  operations ;  and  it  has 
been  contended  both  by  writers  on  international  law  and  in  dis- 
cussion at  the  second  Peace  Conference,  that  this  right  would 
extend  to  a  case  in  which  the  captor  was  merely  unable  to  spare  a 
prize  crew  to  take  the  vessel  into  one  of  his  own  ports  without  un- 
duly diminishing  his  fighting  force.  Great  Britain  on  her  part  has 
always  held  that,  in  the  case  of  a  neutral  ship,  or  in  case  of  doubt 
as  to  nationality,  if  the  prize  can  not  be  brought  in,  she  should  be 
dismissed,  and  that  no  military  necessity  can  justify  to  the  neutral 
owner  the  destruction  of  his  ship  without  due  process  of  a  prize 
court.  In  the  few  recorded  cases  where,  in  past  times,  neutral  prizes 
have  been  so  destroyed  by  English  captors,  the  Court  decreed  full 
compensation  as  due  of  right  to  the  owners  for  the  wrong  done  to 
them.  At  the  second  Peace  Conference,  Great  Britain  endeavoured 
unsuccessfully  to  obtain  general  recognition  for  the  rule  that  destruc- 
tion of  neutral  prizes  should  in  all  circumstances  be  forbidden.  The 
result  of  the  discussions  at  that  conference  has  been  to  show  that  there 
is  practically  no  prospect  of  this  contention  being  accepted  in  its  en- 
tirety, and  it  must  be  admitted  that  while  authority  can  be  quoted  in 
its  support  from  text  books  and  from  British  cases,  there  is  a  large 
body  of  opinion  among  writers  on  international  law  that  although  in 
principle  a  neutral  ship  should  in  every  case  be  brought  in  or  released, 
circumstances  might  arise  in  which  its  immediate  destruction  would  be 
justified. 


226  NAVAL  CONFERENCE  AT  LONDON 

29.  The  matter  is  clearly  one  of  much  importance  to  neutral  traders, 
and  its  importance  is  illustrated  and  accentuated  by  Russian  action  and 
Russian  decisions  during  the  recent  Russo-Japanese  war,  when,  as  it 
appeared  to  His  Majesty's  Government,  neutral  vessels  were  destroyed 
without  justification,  but  the  legitimacy  of  such  destruction  was  sus- 
tained by  the  Russian  Prize  Courts.  It  is  therefore  very  desirable  that 
some  agreement  should,  if  possible,  be  come  to  at  the  forthcoming 
Conference  which  should  afford  a  real  check  on  belligerents  in  this 
respect.  The  way  to  an  agreement  might  perhaps  be  found  by  pro- 
ceeding on  the  lines  of  affirmation  of  the  general  principle  that  neutral 
prizes  must  not  be  destroyed  before  adjudication,  followed  by  a  precise 
statement  of  the  conditions  on  which  alone  a  departure  from  the  prin- 
ciple could  be  allowed  in  exceptional  circumstances.  These  conditions 
would  have  to  be  so  framed  as  to  safeguard  the  rights  and  interests 
of  neutrals  in  as  eflfective  a  manner  as  possible. 

30.  His  Majesty's  Government  can  not  admit  the  contention  that 
inability  of  the  captor  to  spare  a  prize  crew  would  suffice  to  justify 
destruction.  Such  an  admission  would  probably  be  held  to  authorize 
the  destruction  of  neutral  prizes  in  the  majority  of  cases  where  the 
captor  had  not  a  port  of  his  own  near  to  the  place  of  capture.  It  is  to 
be  expected  that  the  duty  of  intercepting  merchant-vessels  for  visit  and 
examination  will  often  be  intrusted  to  vessels  of  great  speed  and  con- 
siderable offensive  but  small  defensive  powers,  and  unable  conveniently 
to  carry  crews  larger  than  requisite  for  the  ordinary  duties  of  the 
vessel.  Such  vessels  would  seldom  be  able  to  spare  a  sufficient  number 
of  men  to  form  prize  crews,  and  they  would  therefore  frequently  be  in 
the  position  of  not  being  able  to  send  in  a  prize  without  weakening  their 
fighting  force,  and  thus,  as  it  might  be  argued,  affecting  their  safety 
and  the  success  of  their  operations.  No  doubt  this  danger  is  to  some 
extent  qualified  by  the  fact  that  it  would  be  difficult  for  such  vessels 
to  accommodate  the  passengers  and  crew  of  the  prize,  and  unless  they 
were  able  to  do  this,  their  only  course  would  be  to  take  the  prize  into 
port  under  their  guns,  which  would  be  almost  impracticable  if  the  port 
was  at  some  distance  from  the  place  of  capture.  Clearly  the  crew 
and  passengers  on  board  a  neutral  vessel,  which  may  perhaps  include 
women  and  children,  ought  not  to  be  exposed  to  the  hardships  and  risks 
which  would  arise  if  they  were  to  remain  for  any  length  of  time  on 
board  a  belligerent  man-of-war.     Such  a  ship  might,  while  these  per- 


INSTRUCTIONS   TO   BRITISH   DELEGATES  227 

sons  were  still  on  board,  be  in  action  with  an  enemy,  and  nothing  short 
of  an  altogether  imperative  necessity  could  justify  a  belligerent  in  ex- 
posing them  to  such  a  peril. 

31.  The  conditions  which  His  Majesty's  Government  consider  might 
fairly  be  attached  to  a  recognition  on  their  part  of  the  right  to  sink 
neutral  prizes  would  be  that  the  emergency  should  be  justified  by  an 
imperative  military  necessity  of  which  the  prize  courts,  and  ultimately 
the  International  Court,  should  be  the  judge,  and  that  the  crew  and 
passengers  must  not,  whilst  on  board  a  belligerent  vessel,  be  exposed 
to  the  perils  of  a  naval  engagement.  An  effort  should  be  made  to 
secure  the  adoption  by  the  Conference  of  the  view  that  inability  to  spare 
a  prize  crew,  or  the  mere  remoteness  of  a  convenient  national  port,  does 
not  constitute  a  military  necessity  which  would  justify  the  sinking  of  a 
neutral  prize.  An  agreement  to  this  effect  would  gain  enormously  in 
value  if  it  were  also  stipulated  that  in  all  cases  where  a  neutral  ship  is 
sunk  before  adjudication  in  a  prize  court,  the  owners  should  be  entitled 
to  full  compensation,  altogether  apart  from  the  question  of  the  char- 
acter of  the  traffic  in  which  the  ship  was  engaged. 

32.  When  this  subject  was  debated  at  the  second  Peace  Conference, 
various  suggestions  were  put  forward  from  different  quarters  with  a 
view  to  provide  an  alternative  to  destruction  in  cases  where  a  vessel 
could  not  be  brought  into  a  national  port.  It  is  not  improbable  that 
some  of  those  suggestions  may  be  renewed  on  the  present  occasion. 
The  principal  proposal  in  this  direction  was  that  the  captor  should  be 
permitted,  when  a  prize  has  been  captured  at  a  long  distance  from  any 
of  his  ports,  to  take  her  into  a  neutral  port  within  reach,  where  she 
would  be  sequestrated  pending  the  adjudication  of  the  prize  court,  to 
which  meanwhile  the  ship's  papers  and  the  necessary  witnesses  were  to 
be  sent  as  soon  as  practicable.  His  Majesty's  Government  have  de- 
clined to  accept  article  23  of  the  convention  signed  at  The  Hague  re- 
specting the  rights  and  duties  of  neutral  Powers  in  maritime  war,  which 
authorizes  this  procedure.  I  am  not  now  in  a  position  to  say  what  view 
His  Majesty's  Government  might  have  taken  as  to  the  advisability  of 
accepting  the  proposal  with  or  without  some  modifications  or  restric- 
tions, had  its  advocates  offered  it  as  a  compromise  in  return  for  which 
they  would  abandon  the  claim  to  sink  neutral  prizes.  It  was  in  this 
form  that  the  proposal  was  originally  put  forward.  In  the  end,  however, 
the  claim  to  sink  was  maintained,  and  the  alternative  suggestion  was 


228  NAVAL   CONFERENCE  AT  LONDON 

ultimately  set  up  as  an  additional  stipulation.  In  these  circumstances 
His  Majesty's  Govermnent  did  not  feel  justified  in  making  the  double 
concession  involved  in  recognizing  the  general  validity  of  practices 
which  are  clearly  open  to  grave  objections.  I  have  already  indicated 
the  readiness  of  His  Majesty's  Government  to  consider  how  and  to 
what  extent  those  objections  might  be  overcome  as  regards  the  destruc- 
tion of  neutral  prizes.  I  do  not,  however,  wish  at  this  stage  to  fetter 
you  by  declaring  the  conditions  formulated  in  paragraph  31  of  the 
present  instructions  to  offer  the  only  possible  solution  that  could  be 
entertained  by  His  Majesty's  Government.  On  the  contrary,  their 
genuine  anxiety  for  some  understanding  in  this  matter  will  dispose 
them  to  approach  any  proposals  for  a  reasonable  compromise  in  an  un- 
biased and  conciliatory  spirit.  Without  committing  themselves  to  any 
definite  decision,  His  Majesty's  Government  will  accordingly  be  willing 
to  listen  and  give  due  weight  to  any  arguments  and  suggestions  that 
may  be  brought  forward  in  order  to  harmonize  the  opposing  views  by 
reopening  the  question  of  the  sequestration  of  neutral  prizes  in  neutral 
ports,  although,  as  at  present  advised,  they  are  not  very  hopeful  that 
any  system  can  be  devised  which  would  prove  really  satisfactory  and 
acceptable  to  all  parties. 

33.  A  suggestion  has  been  made  that  it  should  be  open  to  the  captor 
and  the  captain  of  the  prize,  by  agreement,  to  arrange  that  any  contra- 
band cargo  on  board  should  be  handed  over  or  destroyed,  or  that  some 
form  of  bail  might  be  given  by  the  captain  of  the  prize,  to  which  he 
would  subsequently  have  to  surrender  in  one  of  the  captor's  prize  courts, 
an  that  if  either  of  these  courses  were  adopted,  the  ship  might  be 
allowed  to  proceed.  It  has  been  argued  that  the  possibility  of  this  alter- 
native to  bringing  the  prize  in  would  render  it  unnecessary,  in  any  con- 
tingency which  may  be  contemplated  as  probable,  to  resort  to  its  de- 
struction. This  suggestion  has  been  carefully  examined,  but  His 
Majesty's  Government  have  so  far  been  unable  to  satisfy  themselves 
that  eflfect  could  be  given  to  it  without  giving  rise  to  complications  of 
a  practical  and  legal  character  which  would  render  the  framing  of  the 
necessary  rules  a  task  of  great  difficulty.  You  are,  however,  authorized 
to  take  into  consideration  and  discuss  any  definite  proposal  which  may 
be  brought  forward  relating  to  this  subject. 


INSTRUCTIONS  TO  BRITISH   DELEGATES  229 

(e)   Unneutral  Sen/ice 

34.  There  is  a  close  connection  between  the  controversy  respecting 
the  claim  of  a  belligerent  to  sink  neutral  vessels  in  certain  circum- 
stances, and  the  question  of  the  treatment  to  be  accorded  to  vessels  en- 
gaged in  "unneutral  service."  It  has  never  been  seriously  contested 
that  ships  which,  whilst  sailing  under  a  neutral  flag,  take  an  active  part 
in  the  naval  operations  of  an  enemy,  thereby  forfeit  all  rights  and 
privileges  which  they  would  otherwise  enjoy  in  virtue  of  their  neutral 
status.  In  circumstances  which  can  easily  be  imagined,  such  conduct 
would  inevitably  expose  the  offending  vessel  to  the  risk  of  immediate 
destruction  without  involving  the  belligerent  who  resorted  to  such  action 
in  any  liability ;  and  it  may  well  happen  that  a  particular  case  in  which 
it  might  be  argued  that  the  sinking  of  a  neutral  vessel  carrying  contra- 
band would  be  justified  by  an  imperative  military  necessity,  would  be 
found  to  be  really  covered  by  the  rules  under  which  vessels  rendering 
unneutral  service  may  be  summarily  dealt  with.  It  was  with  this  con- 
sideration in  view  that  the  British  Delegates  at  the  second  Peace  Con- 
ference endeavoured  to  obtain  the  assent  of  the  Powers  to  an  arrange- 
ment by  which  a  ship  so  engaged  should  be  held  to  have  the  status,  not 
of  a  neutral  merchantman,  but  of  an  "auxiliary  ship"  of  the  belligerent 
navy.  The  British  proposal  was,  owing  apparently  to  a  complete  mis- 
conception of  its  purport  and  intention,  received  with  a  degree  of  sus- 
picion and  hostility  which  decided  His  Majesty's  Government  to  with- 
draw it  at  the  time.  The  problem,  however,  with  which  the  proposal 
was  meant  to  deal  is  one  calling  for  definite  settlement.  His  Majesty's 
Government  will  be  quite  prepared  to  accept  any  rule  which  would  ef- 
fectually deprive  a  vessel  placed  entirely  or  specifically  at  the  service  of 
the  enemy,  of  the  right  to  claim  the  treatment  of  a  neutral.  A  practical 
solution  might  perhaps  be  found  by  placing  such  vessels  on  the  same 
footing  as  enemy  merchant-ships. 

35.  Little  difficulty  is  expected  to  arise  as  regards  a  proper  definition 
of  that  category  of  unneutral  services  which  is  usually  dealt  with  under 
the  head  of  the  "analogues  of  contraband."  The  carriage  of  enemy 
despatches,  and  the  conveyance  of  military  detachments  or  of  individual 
officers  or  civil  agents  of  the  enemy  have  generally  been  admitted  to 
render  the  ship  liable  to  seizure,  and  possibly  to  confiscation.  No  great 
importance  is  likely  to  be  attached  in  future  to  the  chance  of  seizing 
enemy  despatches  on  board  neutral  vessels,  since  it  now  suffices  to  in- 


230  NAVAL  CONFERENCE  AT  LONDON 

elude  such  despatches  in  the  ordinary  postal  correspondence,  in  order  to 
render  them  immune  from  seizure  under  the  terms  of  the  Convention 
relative  to  certain  restrictions  on  the  exercise  of  the  right  of  capture 
in  maritime  war,  recently  signed  at  The  Hague. 

36.  It  would  be  desirable  to  arrive  at  some  understanding  that  the  in- 
advertent conveyance  by  neutral  vessels  of  a  few  individuals  having  the 
character  of  analogues  of  contraband  should  not  entail  on  such  vessels 
more  than  the  minimum  amount  of  interference  necessary  for  prevent- 
ing the  contraband  persons  from  reaching  their  destination.  His  Maj- 
esty's Government  are  aware  of  the  serious  difficulties  in  the  way  of 
any  arrangement  for  giving  effect  to  this  view.  I  referred  above 
(§  33),  when  discussing  the  question  of  the  sinking  of  neutral  prizes, 
to  the  suggestion,  made  by  some  Powers  in  that  connection,  that  means 
might  be  devised  for  letting  the  ship  proceed  after  the  removal  of  the 
contraband  by  the  captor.  The  suggestion  merits  special  consideration 
from  the  point  of  view  of  the  treatment  of  contraband  persons.  H  such 
a  course  as  has  been  indicated  were  found  to  be  practicable,  the  choice 
would  seem  to  lie  between  the  inconvenience  and  loss  inevitably  result- 
ing from  a  large  and  valuable  neutral  ship  being  brought  in  for  trial 
before  a  prize  court,  and  the  responsibility  of  acquiescing  in  the  removal 
from  under  the  neutral  flag,  on  the  demand  of  a  belligerent  man-of-war, 
of  persons  whose  contraband  character  it  might  or  might  not  be  pos- 
sible to  establish  to  the  satisfaction  of  the  captain  of  the  neutral  vessel. 
H,  in  these  circumstances,  the  practical  difficulties  can  be  overcome, 
your  Lordship  should  not  oppose  an  absolute  refusal  to  the  considera- 
tion of  this  question. 

(/)  Conversion  of  Merchant-Ships  into  War-Ships 

37.  The  conditions  under  which  merchant-ships  may  be  converted 
into  war-ships  were  much  debated  at  the  second  peace  conference,  and 
on  a  number  of  points  an  agreement  was  reached,  which  was  finally 
embodied  in  one  of  the  conventions  annexed  to  the  final  act  of  the 
conference.  In  regard  to  one  important  point,  however,  namely,  as  to 
whether  such  conversion  could  be  legally  effected  on  the  high  seas,  it 
was  found  impossible  to  arrive  at  any  understanding.  The  preamble 
of  the  convention  referred  to  accordingly  recites  that — 

"Whereas  the  Contracting  Powers  have  been  unable  to  come  to 
an  agreement  on  the  question  Avhether  the  conversion  of  a  mer- 


INSTRUCTIONS  TO   BRITISH   DELEGATES  231 

chant  ship  into  a  war-ship  may  take  place  upon  the  high  seas,  it  is 
understood  that  the  question  of  the  place  where  such  conversion 
is  effected,  remains  outside  the  scope  of  this  agreement,  and  is  in 
no  way  affected  by  the  following  rules     .     .     ." 

38.  In  the  presence  of  this  clearly  recorded  divergence  of  views  it  is 
not  possible  to  expect  that  the  forthcoming  conference  could  bring 
about  agreement  as  to  the  existing  law,  but  His  Majesty's  Government 
earnestly  hope  that  means  will  be  found  to  frame  a  common  rule  to 
which  the  principal  naval  Powers  will  bind  themselves  to  conform  in 
future.  Such  a  rule  must  obviously  be  in  the  nature  of  a  compromise, 
and  it  would  have  to  be  established  by  way  of  a  convention.  Apart 
from  the  important  question  of  principle  involved,  there  are  two  prac- 
tical considerations  which  have  chiefly  weighed  with  His  Majesty's 
Government  in  refusing  to  recognize  the  right  to  convert  merchant- 
vessels  into  ships  of  war  on  the  high  seas.  One  is  the  facility  which 
such  a  right  would  give  to  the  captain  of  a  merchant-vessel  qualified  to 
act  as  a  war-ship  to  seize  enemy  or  neutral  ships  without  warning. 
The  other  is  that  enemy  vessels  under  the  mercantile  flag,  but  suitable 
for  conversion,  would  be  able,  as  merchantmen,  to  claim  and  obtain  in 
neutral  ports  all  the  hospitality  and  privileges  which  would,  under  the 
accepted  rules  of  naval  warfare,  be  denied  to  them  if  they  were  war- 
ships. Availing  herself  of  these  advantages,  such  a  vessel,  found  in 
distant  waters  after  the  outbreak  of  hostilities,  would  be  enabled  to  pass 
from  one  neutral  port  to  another  until  she  reached  the  particular  point 
in  her  voyage  where  she  might  most  conveniently  be  converted  into  a 
commerce  destroyer.  These  difficulties  might  be  met  by  restricting  the 
right  of  conversion  on  the  high  seas  to  the  case  of  vessels  which  had 
previously  been  specifically  and  publicly  designated  by  the  respective 
governments  as  suitable  for  the  purpose  and  borne  on  their  navy  lists ; 
and  by  subjecting  such  vessels,  while  in  neutral  ports,  to  the  same  treat- 
ment as  belligerent  men-of-war.  But  any  other  suggestions  which  may 
be  made  in  the  desired  direction,  His  Majesty's  Government  will  be 
ready  to  examine  sympathetically. 

(g)   Transfer  of  M erchanf -Vessels  to  a  Neutral  Flag  during  or  in 
Contemplation  of  Hostilities 

39.  The  point  of  difference  between  the  Powers  on  the  question  of 
the  transfer  to  a  neutral  flag  is,  broadly,  whether  bona  fide  transfers 


232  NAVAL   CONFERENCE  AT  LONDON 

after  the  outbreak  of  war,  or  within  a  fixed  period  before  the  war,  are 
or  are  not  permissible.  Some  Powers  hold  such  transactions  to  be 
invalid.  Great  Britain,  and  several  other  Powers,  adopt  the  view  that, 
subject  to  certain  conditions,  such  transfer  is  legitimate,  but  that  it  is 
for  the  purchaser  to  establish  the  bona  fides  of  the  transaction.  A  rule 
excluding  altogether  the  right  of  transfer  after  the  commencement  of 
war  appears  to  His  Majesty's  Government  to  be  too  serious  a  burden  to 
impose  on  any  country  which  carries  on  a  large  trade  in  building  and 
selling  ships.  The  equity  of  the  case  seems  to  demand  that  transfer 
should  be  permissible,  but  that  the  belligerent  should  be  entitled  to  in- 
quire closely  as  to  the  bona  fides  of  the  transaction,  and  that  the  onus 
should  be  on  those  concerned  therein  to  establish  that  the  transfer  was 
complete  and  the  transaction  was  genuine.  His  Majesty's  Govern- 
ment think  that  the  British  Delegates  should  maintain  this  view  at  the 
Conference.  They  hope  that  it  may  be  possible  to  convince  the  Repre- 
sentatives of  the  other  Powers  of  its  justice,  and  that  an  agreement 
may  be  arrived  at  on  the  subject.  It  seems,  however,  doubtful  whether 
any  such  agreement  could  be  established  on  the  basis  of  a  statement  or 
an  interpretation  of  existing  law,  and  the  solution  may  accordingly  have 
to  be  sought  by  way  of  a  conventional  stipulation. 

(h)  Enemy  Property 

40.  In  considering  the  question  of  enemy  property,  it  is  necessary  to 
distinguish  between  property  in  ships  and  property  in  goods.  The  neu- 
tral or  enemy  character  of  a  ship  depends,  generally  speaking,  on  the 
flag.  It  has  been  contended  that  a  ship  under  a  neutral  flag  may  never- 
theless be  treated  as  an  enemy  ship  if  she  is  owned  in  whole  or  in  part 
by  an  enemy,  but  the  proposition  stated  in  this  general  way  appears  to 
His  Majesty's  Government  to  go  too  far,  and  to  be  difficult  as  well  as 
unjust  in  application.  In  existing  circumstances  its  application  would 
sometimes  amount  to  absurdity,  because  it  might  be  that  the  ownership 
by  an  enemy  subject  of  one  sixty-fourth  only  of  a  vessel  divided  be- 
tween sixty-four  private  owners  would  turn  that  ship  into  an  enemy 
vessel,  whereas  a  ship  owned  by  a  limited  company  registered  in  a 
neutral  country  would  not  be  an  enemy  ship,  although  the  large  majority 
of  its  shareholders  might  conceivably  be  citizens  or  subjects  of  the 
enemy  State.  On  the  whole,  His  Majesty's  Government  consider  that 
it  would  be  right  to  assent  to  the  principle  that  the  test  of  the  nationality 
of  the  ship  should  be  the  flag  which  she  is  entitled  to  fly. 


INSTRUCTIONS   TO   BRITISH   DELEGATES  233 

41.  As  regards  the  ownership  of  goods,  the  system  of  continental 
jurisprudence  is  to  apply  the  test  of  the  nationality  of  the  owner,  while 
British  practice,  followed  also  by  Japan,  the  Netherlands,  and,  it  is 
understood,  the  United  States,  attributes  neutral  or  enemy  character 
to  property  according  as  the  owner  is  domiciled  for  the  purposes  of  his 
trade  or  business  in  a  neutral  or  enemy  country.  The  principle  of  domi- 
cile appears  to  His  Majesty's  Government  to  be  both  sounder  and  more 
practical.  There  is  a  good  deal  of  support  for  it  in  the  works  of  writers 
on  international  law,  and  even  the  French  Government,  during  the  war 
of  1870-1,  issued  a  notice  based  upon  the  British  view,  although  the 
principle  was  not  adopted  in  their  prize  decisions.  His  Majesty's  Gov- 
ernment doubt  whether,  as  a  practical  matter,  the  interest  of  Great 
Britain  would  be  materially  affected  by  the  general  adoption  of  the  con- 
tinental rule  of  nationality.  Enemy  property,  except  contraband,  is,  by 
the  Declaration  of  Paris,  exempt  from  seizure  when  on  board  neutral 
vessels,  and  it  is  probable  that  in  any  war  in  which  one  of  the  bel- 
ligerents had  a  decided  naval  preponderance,  the  enemy's  mercantile 
marine  would  be  speedily  driven  from  the  seas,  and  that  consequently 
opportunities  for  capturing  enemy  property  on  board  enemy  ships  would 
rapidly  disappear  as  the  war  proceeded.  Whilst  therefore  His  Maj- 
esty's Government  consider  that  the  test  of  domicile  is  in  every  respect 
preferable,  they  do  not  think  the  principle  involved  is  of  such  impor- 
tance as  to  make  insistence  upon  it  a  vital  matter.  Your  endeavour 
should  accordingly  be  to  secure,  if  possible,  the  general  acceptance  of 
the  test  of  domicile,  but  not  to  take  a  determined  stand  on  its  mainte- 
nance, should  such  an  attitude  stand  in  the  way  of  reaching  any  agree- 
ment. 

42.  In  the  general  conduct  of  the  negotiations,  your  Lordship  and  the 
British  delegates  associated  with  you  will  ever  bear  in  mind  that  the 
British  Empire,  like  every  other  State,  has,  when  neutral,  everything 
to  gain  from  an  impartial  and  effective  international  jurisdiction  in  mat- 
ters of  prize  such  as  it  is  the  purpose  of  the  forthcoming  Conference 
to  establish  on  a  sure  and  solid  foundation,  and  that  if,  unhappily,  the 
Empire  should  be  involved  in  war,  it  will  not  suffer  if  those  legitimate 
rights  of  a  belligerent  State  which  have  been  proved  in  the  past  to  be 
essential  to  the  successful  assertion  of  British  sea  power,  and  to  the 
defence  of  British  independence,  are  preserved  undiminished  and  placed 
beyond  rightful  challenge.  The  maintenance  of  these  belligerent  rights 
in  their  integrity,  and  the  widest  possible  freedom  for  neutrals  in  the 


234  NAVAL   CONFERENCE  AT  LONDON 

unhindered  navigation  of  the  seas  are  the  principles  that  should  remain 
before  your  eyes  as  the  double  object  to  be  pursued,  and  should  at  the 
same  time  serve  as  the  touchstone  by  which  either  the  equity  of  conces- 
sions which  you  may  ask  other  Powers  to  make,  or  the  value  of  com- 
promises to  which  you  may  be  called  upon  to  assent,  can  be  safely  and 
accurately  judged. 
I  am,  &c. 

E.  Grey. 


Report  of  the  British  Delegates  ^ 

Foreign  Office^  March  i,  ipop. 
Sir, 

We  have  the  honour  to  submit  the  following  report  on  the  proceed- 
ings of  the  International  Naval  Conference,  which  concluded  its  sittings 
on  the  26th  ultimo. 

2.  In  your  circular  despatch  of  the  27th  February,  1908,  inviting 
certain  Powers  to  attend  the  Conference,  a  specific  programme  of  busi- 
ness was  indicated.  This  programme  was  adopted  and  followed,  and  on 
nearly  all  the  matters  included  therein  an  agreement  has  been  reached, 
and  a  Declaration^  drawn  up  giving  eflfect  to  that  agreement,  in  terms 
which,  we  trust,  will  meet  with  the  approval  of  His  Majesty's  Gov- 
ernment. 

3.  The  work  of  the  Conference  was  materially  facilitated  by  the  pre- 
liminary exchange  of  views  between  the  several  Governments  which 
had  agreed  to  send  Delegates.  This  enabled  His  Majesty's  Govern- 
ment, with  the  valuable  assistance  of  the  eminent  French  jurist,  M. 
Fromageot,  whose  services  had  been  placed  at  their  disposal  by  the 
courtesy  of  the  French  Government,  to  present  to  the  Conference  as 
bases  for  its  discussions  a  set  of  draft  articles  dealing  with  the  questions 
comprised  in  the  programme,  and  laying  down  a  number  of  generally 
recognized  rules  of  international  law  which  it  was  found  possible  to 
deduce  from  the  statements  furnished  by  the  different  Powers.  It  is 
gratifying  to  be  able  to  report  that  the  bases  of  discussion  so  prepared 
were  freely  acknowledged  by  the  foreign  Delegates  as  having  brought 
out  with  clearness  and  impartiality  the  main  points  which  might  pro- 
visionally be  regarded  as  common  ground,  although  it  was  inevitable, 
in  the  circumstances,  that,  in  some  cases,  the  propositions  put  forward 
could  not  be  unreservedly  accepted  by  every  Power,  and,  moreover,  that 
in  regard  to  several  subjects  of  importance,  the  points  of  agreement  did 
not  go  beyond  statements  of  general  principles. 

4.  It  is  all  the  more  gratifying  that,  in  the  course  of  debate  and 
argument,  and  by  mutual  concession,  it  became  possible  by  degrees  to 


'^British  Parliamentary  Paper.  Miscellaneous,  No.  4  (1909),  p.  93.    [Cd.  4554.] 
2  For  text  of  Declaration,  see  p.  112. 


236  NAVAL   CONFERENCE  AT  LONDON 

harmonize  differences  and  to  elaborate  more  detailed  rules,  even  as  re- 
gards matters  on  which  unanimity  seemed  at  first  unattainable.  That 
such  general  agreement  w^s  reached  has  been  due  not  alone  to  the  spirit 
of  determined  good-will  and  the  markedly  conciliatory  disposition 
evinced  by  the  Delegates  of  all  the  Powers  represented,  to  which  we 
desire  to  bear  sincere  testimony,  but  also,  we  believe,  in  no  small 
measure,  to  the  fact,  already  recognized  by  His  Majesty's  Government, 
that,  underlying  the  diversities  of  practice  and  theory  in  relation  to  the 
subjects  under  the  consideration  of  the  Conference,  there  really  sub- 
sisted a  fundamental  harmony  of  conception  which  but  required  careful 
and  sympathetic  examination  in  order  to  reveal  a  genuine  community 
of  guiding  ideas,  of  needs,  and  of  interests  between  all  States,  requiring, 
and  capable  of  being  dealt  with  by,  uniform  and  unambiguous  rules. 

5.  The  Conference  was  opened  by  you  at  the  Foreign  Office  on  the 
4th  December,  1908.  Under  the  presidency  of  the  British  Plenipoten- 
tiary, it  proceeded  in  a  series  of  plenary  meetings  to  give  a  first  reading 
to  the  Bases  of  Discussion  submitted  by  us  on  behalf  of  His  Majesty's 
Government,  in  the  course  of  which  a  number  of  amendments  were 
handed  in  by  different  delegations.  It  was  then  agreed  that  the  neces- 
sary detailed  discussion  would  be  more  fruitful,  and  an  understanding 
on  the  various  questions  at  issue  be  facilitated,  if  the  Conference  were 
to  sit  in  Committee,  without  the  restraint  of  a  formal  record  of  the 
proceedings  in  official  minutes.  The  more  conversational  system  of  de- 
bate thereby  rendered  possible  allowed  of  a  freedom  of  speech  and 
easy  interchange  of  views  which  had  the  most  happy  results.  Under 
the  courteous  and  efficient  chairmanship  of  M.  Renault,  the  distin- 
guished French  Plenipotentiary,  whose  unfailing  tact,  unrivalled  knowl- 
edge, and  wide  experience  materially  contributed  to  the  smooth  progress 
of  the  discussions,  the  main  lines  of  the  general  agreement  which  was 
subsequently  embodied  in  the  terms  of  the  final  Declaration,  were  laid 
down  in  this  Grand  Committee.  A  more  restricted  number  of  members 
was  then  selected  to  constitute  an  Examining  Committee,  which  pro- 
ceeded to  work  out  in  greater  detail  the  questions  presenting  special 
difficulties,  whilst  the  duty  of  preparing  the  final  text  of  the  rules  agreed 
upon  was  assigned  to  a  Drafting  Committee.  A  small  Legal  Com- 
mittee was  also  appointed  to  consider  the  very  technical  questions  in- 
volved in  the  problem  of  how  to  determine  what  constitutes  enemy 
property.  Over  the  Legal  Committee,  M.  Fromageot  presided,  whilst 
M.  Renault  acted  as  chairman  and  reporter  of  the  other  committees. 


REPORT  OF  THE  BRITISH  DELEGATES  237 

The  proceedings  of  the  Conference  in  plenary  meetings  are  recorded  in 
the  minutes,  and  short  summaries  were  made  of  the  discussions  in 
Grand  Committee.^  Attached  to  these  minutes  is,  among  other  papers, 
the  General  Report  to  the  Conference  prepared  by  M.  Renault.'-  We 
desire  to  call  your  particular  attention  to  this  document,  which  contains 
a  most  lucid  explanatory  and  critical  commentary  on  the  provisions  of 
the  Declaration.  It  should  be  borne  in  mind  that,  in  accordance  with 
the  principles  and  practice  of  continental  jurisprudence,  such  a  report 
is  considered  an  authoritative  statement  of  the  meaning  and  intention  of 
the  instrument  which  it  explains,  and  that  consequently  foreign  Gov- 
ernments and  Courts,  and,  no  doubt  also,  the  International  Prize  Court, 
will  construe  and  interpret  the  provisions  of  the  Declaration  by  the  light 
of  the  commentary  given  in  the  report. 

6.  In  proceeding  to  report  our  action  in  regard  to  the  several  items 
of  the  programme  of  the  Conference,  it  will  be  convenient  to  follow  the 
order  in  which  the  subjects  stand  arranged  in  the  successive  chapters 
of  the  Declaration.  We  shall  confine  ourselves  in  the  main  to  points 
of  special  importance,  and  more  particularly  to  those  on  which  the  pro- 
visions of  the  Declaration  do  not  altogether  harmonize  with  the  old 
rules  of  the  British  prize  courts. 

(i)  Blockade 

7.  It  is  a  matter  for  congratulation  that  in  respect  to  the  important 
subject  of  blockade  we  have  been  able  to  secure  full  recognition  of  the 
principles  on  which  you  directed  us  to  lay  stress.  The  twenty-one 
articles  constituting  the  first  chapter  of  the  Declaration  contain  a  body 
of  rules  which  substantially  correspond  to  the  practice  of  this  country 
as  upheld  by  the  decisions  of  British  prize  courts.  The  vexed  question 
of  the  distance  from  the  blockaded  coast  at  which  vessels  attempting  to 
break  blockade  may  be  captured,  has  been  solved,  as  suggested  in  para- 
graph 22  of  our  instructions,  by  restricting  the  geographical  limits 
within  which  capture  is  authorized  to  the  area  of  operations  of  the 
blockading  forces.  As  indicated  in  paragraph  21  of  those  instructions, 
this  solution  is  quite  in  harmony  with  the  facts  of  the  various  reported 
decisions  of  our  prize  courts. 

8.  The  view  hitherto  upheld  by  certain  Powers  that  no  vessel  can  be 


1  For   these   papers    see    British    Parliamentary    Paper,   Miscellaneous,    No.    5 
(1909),  pp.  126-230.     [4555.] 

2  See  p.  130. 


238  NAVAL   CONFERENCE  AT  LONDON 

seized  for  breach  of  blockade  until  after  a  special  notification  of  the 
existence  of  the  blockade  has  been  entered  on  her  papers  by  an  officer 
of  the  blockading  squadron,  has  been  abandoned  as  no  longer  in  har- 
mony with  the  conditions  and  requirements  of  modern  warfare.  The 
non-applicability  of  the  doctrine  of  continuous  voyage  to  cases  of  block- 
ade-running has  been  definitely  and  unanimously  recognized  by  article 
19  of  the  Declaration. 

(ii)   Contraband 

9.  The  negotiation  of  an  agreement  on  the  subject  of  contraband,  and 
the  framing  of  a  body  of  rules  acceptable  to  all  parties  and  dealing 
comprehensively  with  the  numerous  points  of  controversy  which  have 
in  the  past  so  frequently  given  rise  to  serious  international  complica- 
tions under  this  head,  proved  one  of  the  most  arduous  tasks  of  the  Con- 
ference. The  settlement  effected  will  no  doubt  be  scrutinized  with  pro- 
portionate interest.  We  believe  it  will  be  found  to  be  not  merely  satis- 
factory from  the  British  point  of  view,  but  to  constitute  an  effective 
safeguard  of  the  best  interests  of  neutrals  in  general,  whilst  preserving 
all  legitimate  rights  of  belligerents. 

10.  Proposals  made  to  the  Conference  for  a  statement  of  the  proper 
limitation  of  the  belligerent's  admitted  right  to  suppress  contraband 
trade  moved,  in  the  main,  on  two  different,  though  not  altogether  diver- 
gent, lines.  Endeavours  were  made,  on  the  one  hand,  to  define  more 
clearly  the  articles  which  may  be  treated  as  contraband,  and,  on  the 
other,  to  narrow  down  the  conditions  under  which  contraband  can  be 
lawfully  seized.  The  renewal  of  the  suggestion  already  put  forward  at 
the  second  Peace  Conference  at  The  Hague,  that  conditional  contra- 
band should  be  abolished,  had,  in  spite  of  the  support  of  a  few  Powers, 
on  the  whole  so  unfavourable  a  reception  as  to  allow  of  no  hope  of  its 
being  accepted  by  the  present  Conference  with  anything  approaching 
unanimity.  In  these  circumstances,  we  decided  to  concentrate  our  ef- 
forts on  obtaining  as  strict  as  possible  a  limitation  and  definition  of 
the  term  contraband,  and  on  securing  the  adoption  of  provisions  for  the 
exaction  of  rigorous  proof  by  the  captor  for  the  establishment  of  the 
contraband  character  of  goods  seized  and  taken  before  a  prize  court. 
Reverting  to  certain  suggestions  made  in  your  general  instructions  to 
the  British  Delegates  at  the  second  Peace  Conference,  we  proposed  the 
setting  up  of  three  lists,  specifying  (1)  everything  that  may  be  treated 
as  absolute  contraband ;  (2)  the  kinds  of  goods  which  may  become  con- 


REPORT  OF  THE  BRITISH  DELEGATES  239 

ditional  contraband ;  and  (3)  a  number  of  articles  which  shall  in  no  case 
be  declared  contraband. 

11.  The  list  of  absolute  contraband  now  adopted  is  that  which  had 
been  previously  agreed  upon  in  the  sub-committee  on  contraband  of  the 
second  Peace  Conference  in  1907,  and  for  which  you  instructed  us  to 
press.  It  was  not  without  considerable  difficulty  that  a  unanimous 
solution  of  this  question  was  arrived  at.  Several  of  the  delegations 
desired  to  see  a  material  enlargement  of  the  list.  We  ourselves  as 
well  as  our  Japanese  colleagues  were  most  anxious  to  secure  the  elim- 
ination from  it  of  horses  and  mules,  which  would  no  doubt  be  more 
appropriately  included!  in  conditional  contraband.  It  became  evi- 
dent, however,  that  if  each  Power  were  to  stand  out  for  its  own  de- 
mands, no  general  agreement  would  be  possible,  and  that  unless  the 
list,  which  had  been  settled  at  The  Hague  as  the  result  of  much  dis- 
cussion and  many  mutual  concessions,  were  adopted  without  alteration, 
it  might  be  difficult  to  prevent  its  being  considerably  enlarged  by  the 
addition  of  articles  which  ought  to  be  excluded.  The  view  in  favour 
of  accepting  the  list  as  it  stands  finally  prevailed,  it  being  agreed  on  all 
hands  that  the  establishment  of  a  strictly  defined  and  generally  recog- 
nized list,  even  if  slightly  defective,  would  be  infinitely  preferable  to 
the  continuance  of  the  uncertainty  which  had  resulted  from  the  con- 
flicting claims  and  the  practice  of  different  nations  in  this  regard 
hitherto.  The  stipulations  permitting  additions  to  the  list  of  absolute 
contraband  restricts  such  additions  to  articles  which  can  serve  no  other 
than  warlike  purposes.  It  was  admitted  that  for  the  present  no  such 
article  could  be  indicated  which  was  not  already  included  in  the  list 
agreed  upon,  but  there  was  a  general  desire  to  preserve  in  this  respect 
the  rights  of  belligerents  in  future,  should  discoveries  of  inventions  that 
could  not  now  be  foreseen  lead  to  the  adoption  of  new  weapons,  pro- 
jectiles, or  other  means  of  offence  or  defence. 

12.  Our  instructions  intimated  that  a  list  of  conditional  contraband, 
although  not  a  matter  of  essential  importance,  would  yet  be  desirable,  if 
only  because  it  would  constitute  a  recognition  of  the  fact  that  it  is  not 
every  article  going  to  a  place  occupied  by  the  armed  forces  of  a  bel- 
ligerent that  can  be  treated  as  conditional  contraband.  We  accordingly 
proposed  such  a  list,  and  we  obtained  its  acceptance  by  the  Conference. 
We  were  able  to  go  farther,  and  have  secured  the  adoption  of  a  free 
list  which  will  place  it  beyond  the  power  of  belligerents  in  future  to 
treat  as  contraband  the  raw  materials  of  some  of  the  most  important  of 


240  NAVAL   CONFERENCE  AT  LONDON 

our  national  industries.  In  preparing  this  list  we  had  the  advantage  of 
the  technical  advice  of  the  Board  of  Trade.  We  have  succeeded  in  in- 
cluding substantially  all  the  items  suggested  by  them,  and  we  trust  that 
the  free  list  now  constituted  will  afford  a  welcome  guarantee  of  security 
to  valuable  branches  of  British  commerce.  In  order  to  make  it  clear 
beyond  doubt  that  the  fact  of  not  appearing  in  the  free  list  does  not 
necessarily  relegate  a  particular  class  of  goods  to  the  category  of  those 
which  may  be  declared  contraband,  we  thought  it  right  to  press  for  the 
provision  embodied  in  article  27  that  in  no  case  may  anything  be  de- 
clared contraband  that  can  not  be  used  for  warlike  purposes. 

13.  It  was  recognized  in  our  instructions  that  almost  any  articles 
going  to  the  armed  forces  of  a  belligerent  might  plausibly  be  contended 
to  be  capable  of  acquiring  a  contraband  character.  This  view  being 
also  held  by  all  the  delegations,  it  was  impossible  for  us  to  resist  the 
adoption  of  a  clause  giving  the  right  of  freely  adding  to  the  list  of  con- 
ditional contraband,  subject  to  due  notice  being  given.  The  right,  how- 
ever, to  confiscate  articles  added  to  the  lists  of  either  absolute  or  con- 
ditional contraband  is,  under  article  43  of  the  Declaration,  made  condi- 
tional upon  the  master  of  the  vessel  carrying  such  articles  being  aware, 
at  the  time  of  sailing,  of  their  contraband  character,  failing  which  the 
goods  can  only  be  seized  on  payment  of  full  compensation.  The  effect 
of  this  rule  is  that  the  neutral  shipowner  will  always  have  previous 
knowledge  of  what  belligerents  will  treat  as  contraband.  He  will 
know,  without  special  notice,  that  goods  falling  under  the  heads  enum- 
erated in  the  above  lists  of  absolute  and  conditional  contraband,  can 
only  be  conveyed  to  the  enemy  at  the  risk  of  seizure  by  a  belligerent ; 
he  will  have  the  certainty  that  no  liability  attaches  to  the  carrying  of 
goods  included  in  the  free  list,  and  he  can  rely  on  receiving  due  notice 
of  any  additional  articles  being  declared  contraband.  We  feel  confi- 
dent that  this  large  measure  of  certainty,  which  has  not  hitherto  existed, 
will  prove  of  material  benefit  to  all  neutral  trade  and  shipping.  The 
provisions  as  to  proof  of  destination  required  to  constitute  a  cargo  con- 
ditional contraband  are,  we  think,  reasonable,  and  such  as  will  involve 
no  injustice  to  neutral  commerce. 

14.  To  obtain  the  advantages  to  be  secured  by  the  establishment  of 
these  lists,  some  concession  had  to  be  made  to  the  Powers  which  have 
hitherto  refused  to  recognize  the  doctrine  of  continuous  voyage.  The 
total  abandonment  of  that  doctrine  was  at  first  demanded  in  return  for 
the  acceptance  of  the  lists,  and  this  demand  was  pressed  with  much  in- 


REPORT  OF  THE  BRITISH  DELEGATES  241 

sistence.  As  the  Powers  by  whose  prize  courts  the  doctrine  has  always 
been  upheld  and  applied  were  naturally  reluctant  to  renounce  a  right 
which  they  claimed  to  be  founded  in  logic  and  justice,  and  as,  on  the 
other  hand,  its  abandonment  was  made  a  vital  issue  by  those  who  refused 
to  acknowledge  it,  there  seemed  at  one  time  to  be  a  danger  of  the  com- 
plete breakdown  of  the  Conference  on  this  point.  Ultimately  a  compro- 
mise was  arrived  at  which  permitted  an  adjustment  of  the  conflicting 
views  and  interests  on  lines  recognized  to  offer  advantages  to  either  side, 
and  this  compromise  was  accepted  by  us  after  obtaining  your  instructions 
thereon.  It  was  agreed  that  the  doctrine  of  continuous  voyage  should 
be  maintained  as  regards  absolute,  but  given  up  as  regards  conditional, 
contraband.  We  had  urged  that  to  forbid  all  interference  with  the 
trade  in  arms  and  other  articles  of  absolute  contraband  carried  on  by 
neutrals,  so  long  as  consignments  were  ostensibly  destined  for  a  neutral 
port,  however  obvious  (and,  possibly,  openly  declared)  their  ultimate 
hostile  destination,  would  be  to  set  up  a  rule  which,  owing  to  its  reason- 
ableness, would  almost  certainly  be  disregarded  by  a  hard-pressed 
belligerent,  and  which  would,  moreover,  expose  the  neutral  Govern- 
ments whose  subjects  claimed  to  carry  on  such  trade,  to  all  the  risks 
of  diplomatic  pressure  and  peremptory  remonstrance  on  the  part  of  a 
powerful  belligerent,  and  so  tend  to  enlarge  the  field  of  warlike  oper- 
ations. 

15.  These  objections  did  not  seem  to  apply  with  equal  force  to  the 
trade  in  conditional  contraband.  All  neutral  shipping  has  a  natural 
interest  in  being  freed  as  completely  as  may  be  from  the  possibility  of 
vexatious  interference  to  which  the  doctrine  of  continuous  voyage 
might  tempt  a  belligerent  to  resort  for  the  mere  purpose  of  harassing 
indirectly  the  enemy's  trade  by  striking  at  that  of  neutrals  suspected  of 
supplying  him  with  conditional  contraband,  even  at  the  risk  of  having 
eventually  to  pay  compensation  for  certain  number  of  unlawful  seizures. 
On  the  other  hand,  it  seems  doubtful  whether,  under  the  conditions  of 
modern  commerce,  the  strictly  legitimate  exercise  of  the  right  to  seize 
goods  destined  for  the  armed  forces  of  the  enemy,  regardless  of  the 
enemy  or  neutral  character  of  the  port  where  the  goods  are  to  be  landed, 
confers  any  far-reaching  advantage  on  a  State  at  war  with  a  continental 
country  which  can  freely  draw  its  supplies  from  neighbouring  neutral 
territories.  It  would  always  be  easy,  in  the  case  of  conditional  contra- 
band which,  unlike  absolute  contraband,  does  not,  by  its  very  nature, 
suggest  the  use  to  which  it  will  be  put,  to  evade  all  liability  to  capture 


242  NAVAL  CONFERENCE  AT  LONDON 

by  consigning  such  goods  to  neutral  ports  under  conditions  which  would 
make  it  practically  impossible  for  a  captor  to  prove  their  final  destina- 
tion. It  may  therefore  be  said  that  the  benefit  derived  by  a  State,  when 
belligerent,  from  the  right  to  apply  the  doctrine  of  continuous  voyage 
to  shipments  of  conditional  contraband  is  narrowly  limited  in  cases 
where  the  enemy  territory  is  easily  accessible  through  neutral  ports,  and 
is  largely  balanced,  if  not  outweighed,  by  the  interest  which  such  State, 
as  a  neutral,  would  have  in  a  definite  prohibition  of  any  belligerent 
molestation  of  the  trade  between  two  neutral  ports  except  trade  in 
absolute  contraband.  It  was  for  these  reasons,  and  impressed  with 
the  advantage  of  securing  a  definite  and  comprehensive  settlement  of 
the  whole  question  of  contraband,  that  we  felt  justified  in  applying  for 
your  assent  to  the  compromise  above  described.  It  is  only  as  regards 
countries  having  no  maritime'  frontier  that  the  doctrine  of  continuous 
voyage  has  been  unanimously  acknowledged  to  remain  applicable  in 
respect  of  both  absolute  and  conditional  contraband. 

16.  The  third  important  question  arising  under  the  head  of  contra- 
band, which  occupied  the  attention  of  the  Conference,  was  that  of  the 
liability  to  condemnation  of  the  ship  engaged  in  contraband  traffic.  It 
soon  became  evident  that  the  principle  of  making  liability  depend  on 
the  proportion  which  the  contraband  on  board  bears  to  the  total  cargo 
was  the  one  most  likely  to  find  general  acceptance.  There  was,  how- 
ever, an  embarrassing  diversity  in  the  actual  proportion  proposed  for 
adoption  by  various  delegations.  It  was  not  without  considerable  diffi- 
culty, and  only  after  prolonged  debates,  that  a  unanimous  pronounce- 
ment was  obtained  in  favour  of  fixing  the  proportion  at  one-half,  as 
suggested  in  our  instructions.  This  solution  has  an  important  bearing 
on  the  question  of  the  sinking  of  neutral  prizes,  to  which  we  shall  refer 
later  on. 

17.  It  was  strongly  urged  that  if  the  liability  of  the  ship  to  con- 
demnation was  limited  to  cases  where  the  contraband  carried  exceeded 
one-half  of  the  cargo,  provision  ought  to  be  made  for  imposing  some 
lesser,  but  yet  substantial,  penalty  on  a  ship  guilty  of  carrying  contra- 
band in  a  smaller  proportion.  A  system  of  fines  was  proposed,  and 
defended  as  a  necessary  deterrent.  We  opposed  any  innovation  of  this 
nature,  pointing  out  that  a  ship  was,  in  fact,  heavily  punished  already  by 
the  severe  losses  involved  in  being  carried  to  a  belligerent  port  and 
there  detained  pending  the  decision  of  the  prize  court.  It  was  finally 
agreed  that  the  case  would  be  sufficiently  met  by  the  general  adoption  of 


REPORT  OF  THE  BRITISH  DELEGATES  243 

the  British  practice,  whereby  the  ship  may  be  condemned  in  the  amount 
of  the  costs  and  expenses  incurred  by  the  captor  on  account  of  the  pro- 
ceedings in  court,  and  the  care  and  custody  of  the  ship  during  those 
proceedings. 

18.  Careful  consideration  was  given  to  the  question,  raised  in  para- 
graph 33  of  our  instructions,  whether  any  satisfactory  arrangement 
could  be  devised  for  allowing  the  immediate  removal  by  the  captor  of 
any  contraband  found  on  board  a  neutral  vessel.  Proposals  were  put 
forward  by  several  delegations.  The  most  far-reaching  was  one  sub- 
mitted by  Austria-Hungary,  under  which  the  neutral  vessel  carrying 
contraband  was  to  be  given  the  right  to  proceed  on  her  way  without 
further  molestation  if  the  master  was  ready  to  hand  over  the  contra- 
band to  the  captor  on  the  spot,  a  proviso  being  added  which  made  it 
necessary  that  a  subsequent  decision  of  a  prize  court  should  intervene 
in  order  either  to  validate  the  transaction  or  to  decree  compensation 
where  the  captor  should  have  l)een  proved  to  have  acted  wrongfully. 
In  this  form,  the  proposal  did  not  meet  with  general  support.  It  was 
objected  that  to  concede  an  absolute  right  in  the  above  terms  to  the 
neutral  would  constitute  an  unjustifiable  interference  with  the  legiti- 
mate rights  of  belligerents,  and  that,  moreover,  the  rule  would  be  found, 
m  practice,  unworkable.  The  Conference  therefore  fell  back  upon  the 
clause  now  embodied  in  the  Declaration  as  article  44,  which  goes  no 
further  than  authorizing  the  handing  over  of  contraband,  or  its  destruc- 
tion, on  the  spot,  by  common  agreement  between  captor  and  neutral, 
subject  to  the  subsequent  reference  of  the  case  to  a  prize  court.  It  is 
not  anticipated  that  it  will  be  possible  to  apply  this  rule  in  very 
numerous  instances,  as,  under  modern  conditions  of  maritime  com- 
merce, the  transshipment  or  destruction  of  cargo  on  the  high  seas  is 
likely  in  most  cases  to  present  serious  or  insuperable  difficulties.  But. 
so  far  as  it  goes,  the  rule  may  afford  a  welcome  measure  of  relief  in 
favourable  circumstances. 

(iii)    Unneutral  Service 

19.  In  the  chapter  of  the  Declaration  dealing  with  the  question  of  un- 
neutral service,  a  distinction  is  made  between  two  classes  of  acts.  The 
less  important  offences  against  the  law  of  neutrality  described  in  article 
45  will  render  the  vessel  engaged  in  such  unneutral  service  liable  to 
condemnation  by  a  prize  court,  or  to  destruction  under  the  special  rules 


244  NAVAL  CONFERENCE  AT  LONDON 

making  such  destruction  lawful  in  certain  exceptional  circumstances, 
which  are  explained  in  a  later  portion  of  the  present  report.  The  graver 
infractions  of  neutrality  with  which  article  46  deals,  will  entail  upon 
the  guilty  ship  the  loss  of  her  status  as  a  neutral,  and  will  authorize  a 
belligerent  to  treat  her  as  if  she  were  an  enemy  merchant-vessel.  One 
of  the  effects  of  this  provision  is  to  remove  such  ship  from  the  juris- 
diction of  the  International  Prize  Court  except  in  so  far  as  that  court 
may  be  called  upon  to  decide  whether  the  facts  alleged  against  her  were 
in  reality  such  as  to  bring  her  under  the  operation  of  article  46  of  the 
Declaration.  The  solution  so  arrived  at  is  in  accordance  with  the  sug- 
gestion contained  in  section  34  of  our  general  instructions. 

20.  The  Conference  had  to  consider  the  difficult  question  of  whether 
and  in  what  circumstances  the  removal  of  contraband  persons  from 
under  a  neutral  flag  by  a  belligerent  man-of-war  was  sanctioned  by  the 
law  of  nations.  According  to  the  rules  followed  by  various  continental 
countries,  the  removal  of  such  persons  can  be  claimed  and  enforced  as 
of  right.  No  such  general  right  has  hitherto  been  admitted  by  this 
country,  although  what  may  be  considered  to  be  an  exception  was  re- 
cently made  in  article  12  of  the  Convention  for  the  Adaptation  of  the 
Principles  of  the  Geneva  Convention  to  Maritime  War.  Under  that 
article,  "any  war-ship  belonging  to  a  belligerent  may  demand  the  sur- 
render of  sick,  wounded,  or  shipwrecked  men  on  board  military  hospital 
ships,  hospital  ships  belonging  to  relief  societies  or  to  private  indi- 
viduals, merchant-ships,  yachts,  or  boats,  whatever  the  nationality  of 
such  vessels."  When  discussing  these  provisions,  the  British  delegates 
at  the  second  Peace  Conference  made  it  clear  that  the  right  thereby  con- 
ceded constituted,  in  their  opinion,  an  innovation  in  international  law 
and  practice,  whilst  the  representatives  of  other  Powers,  notably  France, 
maintained  that  the  principle  involved  formed  part  of  the  existing  law. 
The  same  divergence  of  view  arose  on  the  present  occasion. 

21.  We  had,  however,  to  take  account  of  the  considerations,  set  forth 
in  paragraph  36  of  our  instructions,  in  favour  of  an  arrangement  being 
made  whereby,  in  certain  circumstances,  large  passenger  steamers  under 
a  neutral  flag  should,  if  possible,  be  freed  from  the  costly  inconvenience 
of  being  taken  into  a  prize  court  and  there  detained,  perhaps  for  a  pro- 
longed period,  merely  because  a  few  individuals  forming  part  of  the 
armed  forces  of  a  belligerent,  but  whose  military  status  was  unsus- 
pected by  the  owners  or  captain  of  the  vessel,  were  among  her  passen- 
gers.   On  a  careful  review  of  the  question  in  all  its  bearings,  we  came 


REPORT  OF  THE  BRITISH  DELEGATES  245 

to  the  conclusion,  shared  by  all  the  other  members  of  the  Conference, 
that,  on  the  whole,  the  interests  of  neutrals,  and  particularly  of  those 
Powers  which  possess  a  numerous  fleet  of  ocean  liners  regularly  en- 
gaged in  passenger  traffic,  would  best  be  served  by  allowing  a  belligerent 
to  remove  from  a  neutral  ship,  and  make  prisoners  of  war,  any  persons 
found  on  board  that  are  actually  embodied  in  the  armed  forces  of  the 
enemy. 

22.  Cases  of  this  kind  could  not  be  brought  before  the  International 
Court  in  view  of  the  strict  limitation  of  its  jurisdiction  under  article  3 
of  the  Prize  Court  Convention.  We  nevertheless  thought  it  right  to 
accept  the  view  of  the  majority  of  the  Delegates,  and,  after  some  hesi- 
tation, all  those  who  had  in  the  first  instance  put  forward  objections 
to  the  admission  of  the  article,  decided  on  its  acceptance  and  embodi- 
ment in  the  Declaration,  where  it  appears  as  article  47.  It  was  generally 
agreed  that,  whilst  in  the  absence  of  a  competent  jurisdiction  no  penalty 
could  be  provided  for  any  mistake  made  by  a  belligerent,  whether  wil- 
fully or  unintentionally,  in  seizing  and  taking  off  persons  not  in  fact  em- 
bodied in  the  enemy  forces,  a  belligerent  officer  would  incur  the  gravest 
responsibility  by  such  action,  and  would  lay  his  country  open  to  serious 
diplomatic  remonstrance  and  to  demands  for  full  satisfaction  for  the 
violation  of  the  neutral  flag.  We  feel  convinced  that  the  risk  of  such 
consequences  will  always  ensure  the  exercise  of  the  greatest  caution  by 
the  commander  of  a  belligerent  man-of-war  in  demanding  the  handing 
over  of  contraband  persons. 

(iv)  Destruction  of  Neutral  Prises 

23.  The  understanding  arrived  at  on  the  subject  of  the  destruction  of 
neutral  prizes  represents  a  compromise,  in  negotiating  which  we  have 
endeavoured  to  adhere  as  closely  as  possible  to  the  lines  traced  for  our 
guidance  in  our  general  instructions.  Starting  from  the  position  that  if 
any  agreement  was  to  be  effected  at  all,  the  right  to  destroy  would,  in 
some  form  or  other,  have  to  be  admitted,  we  directed  our  efforts  mainly 
to  obtaining  adequate  safeguards  that  the  exercise  of  such  right,  if 
conceded,  would  be  restricted  to  exceptional  emergencies,  and  that,  if 
the  right  were  abused,  due  reparation  would  be  assured  to  the  injured 
neutral  interests.  We  believe  that  this  is  guaranteed  by  chapter  IV 
of  the  Declaration.  It  is  headed  by  the  enunciation  of  the  general  rule 
that  neutral  prizes  must  not  be  destroyed  but  brought  in  for  adjudica- 
tion.   Then  follow,  in  six  articles,  provisions  authorizing  and  regulating 


246  NAVAL   CONFERENCE  AT  LONDON 

a  departure   from  this  rule  in  certain  circumstances  and  on  certain 
conditions. 

24.  In  the  first  place,  a  neutral  vessel  may  not  be  destroyed  which 
would  not,  if  taken  before  a  prize  court,  be  subject  to  condemnation. 
Not  every  infraction  of  the  rules  respecting  contraband  and  blockade 
renders  the  ship  liable  to  that  penalty.  It  is  from  this  point  of  view  that 
the  provision  under  which  such  liability  has,  as  regards  the  carriage  of 
contraband,  been  limited  to  cases  where  the  contraband  exceeds  one- 
half  of  the  cargo,  derives  a  special  significance.  Not  only  will  all  cases 
where  contraband  is  carried  in  smaller  proportions  be  excluded  from 
the  operation  of  the  rule  permitting  destruction,  but  it  is  to  be  expected 
that  where  the  captor  has  difficulties  in  correctly  estimating  the  actual 
proportion  between  the  contraband  found  on  board  and  the  total  cargo, 
and  where,  consequently,  he  is  in  doubt  whether  the  prescribed  propor- 
tion exists — and  this  will  happen  not  infrequently — he  will  hesitate  to 
proceed  to  an  extremity  which,  if  subsequently  found  to  be  unjustified, 
may  expose  his  Government  to  heavy  claims  for  compensation.  The 
Delegates  representing  those  Powers  which  have  been  most  determined 
in  vindicating  the  right  to  destroy  neutral  prizes  declared  that  the  com- 
bination of  the  rules  now  adopted  respecting  destruction  and  liability 
of  the  ship  practically  amounted  in  itself  to  a  renunciation  of  the  right 
in  all  but  a  few  cases.  We  did  not  conceal  the  fact  that  this  was  exactly 
the  object  at  which  we  aimed. 

25.  The  second  material  safeguard  to  neutrals  consists  in  the  pro- 
vision that  destruction  may  be  resorted  to  only  in  cases  where,  to  take 
the  prize  into  a  national  port,  would  endanger  the  safety  of  the  captor's 
ship  or  the  success  of  the  operations  in  which  she  is  at  the  moment  en- 
gaged. The  Conference  was  unable  to  agree  upon  a  more  precise 
definition  of  the  circumstances  of  "exceptional  necessity"  which  con- 
stitute such  danger.  We  endeavoured  to  obtain  express  recognition  for 
the  proposition  that  the  mere  inability  to  spare  a  prize  crew  did  not 
constitute  an  element  of  danger  in  the  sense  of  the  proviso  in  article 
49.  It  was,  however,  thought  that,  unless  the  circumstances  of  excep- 
tional necessity  could  be  exhaustively  enumerated — which  would  clearly 
be  impracticable — it  would  be  better  not  to  make  special  mention  of  any 
one  particular  contingency  as  not  covered  by  that  term,  since  this  might 
be  held  to  justify  the  conclusion  that  other  eventualities,  not  specially 
excluded,  were  so  covered.  The  solution  which  found  favour  was  to 
confer  on  the  prize  courts,  and  in  the  last  resort  on  the  International 


REPORT  OF  THE  BRITISH  DELEGATES  247 

Court,  a  wide  discretion  in  judging  of  the  exceptional  character  of  the 
circumstances  that  may  be  alleged  as  justifying  the  destruction  of  a 
neutral  vessel,  in  the  belief  that  this  would  ensure  the  faithful  observ- 
ance of  the  letter  and  spirit  of  the  rule,  and  prevent  any  improper 
application  of  its  provisions  by  an  unscrupulous  belligerent.  It  has  ac- 
cordingly been  laid  down  that,  in  all  cases  of  destruction  of  neutral 
vessels  brought  before  a  prize  court,  the  captor  shall  be  called  upon,  in 
the  first  instance,  to  prove  the  existence  at  the  time  of  capture  of  those 
exceptional  circumstances  which  alone,  under  article  49  justify  such  a 
step.  Should  the  captor  fail  to  establish  this  to  the  satisfaction  of  the 
court,  full  compensation  must  be  paid,  whatever  might  otherwise  have 
been  the  liability  of  ship  or  cargo  to  condemnation.  It  will  be  observed 
that  if  innocent  cargo  is  destroyed  with  the  vessel,  the  owner  is,  under 
article  53,  to  be  indemnified. 

26.  Having  once  recognized,  with  certain  reservations,  the  right  to 
destroy  neutral  vessels  before  adjudication  in  a  prize  court,  we  could 
not  reasonably  refuse  to  admit  the  extension  of  that  right  to  cover, 
subject  to  the  same  reservations,  the  destruction  of  contraband  goods 
found  on  board  such  vessels  in  a  less  proportion  than  one-half  of  the 
total  cargo.  Ultimately  the  justification  of  the  destruction  of  a  ship 
carrying  contraband  flows  from  the  right  of  the  belligerent  to  prevent 
contraband  from  reaching  his  enemy  if  he  can.  If,  to  this  end,  a  ship 
liable  to  condemnation  by  a  prize  court  may  be  sunk,  it  seems  to 
follow,  a  fortiori,  that  in  cases  where  a  ship  is  not  so  liable,  the  con- 
traband itself  found  on  board  may  be  destroyed,  provided  the  belligerent 
is  similarly  circumstanced  and  under  the  same  obligation  to  prove  his 
constraint  by  an  exceptional  necessity  before  a  prize  court,  as  is  pre- 
scribed in  the  case  of  the  destruction  of  a  neutral  ship.  We  have 
accordingly  agreed  to  the  clause  to  this  effect  which  appears  in  the 
Declaration  as  article  54. 

(v)   Transfer  of  Merchant-Vessels  from  a  Belligerent  to  a  Neutral  Flag 

27.  The  point  of  view  which  we  were  directed,  in  section  26  of  our 
general  instructions,  to  maintain  in  dealing  with  the  question  of  the 
transfer  of  merchant-vessels  from  a  belligerent  to  a  neutral  flag,  has 
substantially  prevailed  in  the  agreement  arrived  at,  on  this  subject.  The 
effect  of  the  rules  embodied  in  articles  55  and  56  of  the  Declaration  is, 
first,  to  distinguish  broadly  between  two  periods :  that  preceding,  and 
that  following,  the  outbreak  of  hostilities.     The  general  principle  laid 


248  NAVAL  CONFERENCE  AT  LONDON 

down  is  that  bona  fide  transfers  are  valid,  whether  effected  in  one  period 
or  the  other.  But  the  burden  of  proof  of  such  bona  fides  is  differently 
distributed :  it  falls  on  the  belligerent  in  respect  of  transfers  made  be- 
fore the  outbreak  of  war,  and  on  the  neutral  in  respect  of  transfers 
made  subsequently.  Subject  to  this  general  principle,  a  number  of 
subsidiary  rules  are  laid  down.  The  period  before  the  outbreak  of  war 
is  again  subdivided  into  two:  (a)  a  period  comprising  the  thirty  days 
immediately  preceding  the  opening  of  hostilities,  and  (b)  the  indeter- 
minate period  preceding  those  thirty  days.  A  transfer  made  at  least 
thirty  days  before  war  breaks  out  is  good,  unless  it  can  be  shown  that 
it  was  not  either  absolute,  complete,  or  in  accordance  with  the  municipal 
laws  of  the  two  countries  interested,  or  that  the  control  of  the  ship  and 
the  profits  earned  by  her  remained  in  the  same  hands  as  before  the 
transfer.  On  the  other  hand,  the  validity  of  a  transfer  effected  during 
the  period  of  thirty  days  may  be  challenged,  not  only  on  the  above 
grounds,  but  also  on  production  of  proof  that  it  was  made  with  a  view 
to  evade  the  consequences  which  the  retention  of  enemy  nationality 
during  war  would  entail 

28.  In  order  to  facilitate  the  question  of  proof,  it  has  been  thought 
desirable  to  induce  vessels,  on  being  transferred  to  another  flag  in 
time  of  peace,  to  carry  the  bill  of  sale  among  the  ship's  papers  during 
the  two  months  succeeding  the  transfer.  It  is  accordingly  provided 
that,  in  the  case  of  vessels  transferred  within  sixty  days  before  the 
outbreak  of  war,  the  fact  that  the  bill  of  sale  is  not  on  board  will 
render  the  transfer  suspect,  and  have  the  effect  of  shifting  the  burden 
of  proof  as  to  the  bona  fides  of  the  transaction  from  the  captor  on  to 
the  neutral.  As  the  captor,  in  such  circumstances,  will  be  considered 
to  have  "good  reasons"  for  bringing  in  the  vessel,  the  latter,  in  accord- 
ance with  article  64  of  the  Declaration,  forfeits  all  right  to  compensa- 
tion even  if  the  prize  court  should  eventually  decide  that  the  transfer 
was  good. 

29.  The  provisions  respecting  transfers  made  during  a  war  are  less 
complicated.  The  general  rule  is  that  such  transfers  are  considered 
void  unless  it  be  proved  that  they  were  not  made  with  a  view  to  evade 
the  consequences  which  the  retention  of  enemy  nationality  during  war 
would  entail.  This  is  only  another  way  of  stating  the  principle  already 
explained  that  transfers  effected  after  the  outbreak  of  hostilities  are 
good  if  made  bona  Ude,  but  that  it  is  for  the  owners  of  the  vessels 
transferred  to  prove  such  bona  fides.    In  certain  circumstances,  speci- 


REPORT  OF  THE  BRITISH  DELEGATES  249 

fied  in  the  second  paragraph  of  article  56,  mala  fides  is  presumed  with- 
out possibility  of  rebuttal.  The  provisions  under  this  head  are  prac- 
tically in  accord  with  the  rules  hitherto  enforced  by  British  prize  courts. 

(vi)  Enemy  Character 

30.  There  was  a  general  concensus  at  the  Conference  that  the  enemy 
or  neutral  character  of  a  ship  should  be  held  to  be  absolutely  deter- 
mined by  the  flag  she  is  entitled  to  fly.  Such  a  rule  has  the  great  merit 
of  simplicity,  and  is  in  accordance  with  our  instructions. 

31.  The  question  was  raised  in  this  connection  whether  a  ship  shall 
be  deemed  to  lose  her  neutral  character  if  she  engages  in  a  trade  which, 
before  the  war,  was  closed  to  any  but  the  national  belligerent's  flag. 
Great  Britain  has  formerly,  under  the  well-known  "rule  of  1756," 
claimed  to  treat  such  ships  as  enemy  ships,  and  several  other  Powers 
represented  at  the  present  Naval  Conference  were  disposed  to  take 
the  same  view.  Strong  opposition  was,  however,  encountered  on  the 
part  of  the  majority  of  the  Delegates,  and  as  no  unanimous  solution 
could  be  arrived  at,  it  was  agreed  to  leave  the  question  open,  to  be 
ultimately  decided  by  the  International  Court  if  brought  before  it. 

32.  More  difficult  than  the  question  of  how  to  determine  the  nation- 
ality of  a  ship  was  that  of  deciding  the  enemy  or  neutral  character  of 
goods  on  board.  A  special  committee  of  the  Conference,  on  which  all 
the  delegations  were  represented,  was  at  work  for  a  prolonged  period, 
endeavouring  to  formulate  a  rule  on  this  subject  which  could  be  ac- 
cepted by  all ;  but  the  fundamental  differences  underlying  the  systems 
of  jurisprudence  which  rely  upon  the  criterion  of  domicile  and  of 
nationality  respectively,  proved  incapable  of  being  bridged.  The  ad- 
herents of  the  rival  systems  were  evenly  divided  in  the  committee. 
Having  regard  to  the  consideration  to  which  attention  is  called  in  our 
general  instructions,  that  the  practical  application  of  any  rule  on  the 
subject  of  enemy  property  is  bound  to  be  narrowly  restricted,  and 
realizing  that  any  definite  settlement  would  probably  be  preferable  to 
the  continued  uncertainty  as  to  the  rules  which  the  International  Court 
would  apply  on  this  subject,  we  were  disposed  to  make  a  concession 
and  agree  to  the  adoption  of  the  principle  of  nationality,  if  unanimity 
could  be  attained  on  this  basis.  This  condition,  however,  was  not  ful- 
filled, as  the  Powers  were  not  all  prepared  to  accept  such  a  solution. 
It  was  inevitable,  in  these  circumstances,  that  this  question  also  should 
remain  an  open  one.  Whilst  we  consider  this  to  be  a  matter  for  sincere 


250  NAVAL   CONFERENCE  AT  LONDON 

regret,  we  do  not  fail  to  recognize  that,  if  the  equal  division  of  votes 
in  the  committee  of  the  Conference  may  serve  as  some  indication  of  the 
way  in  which  the  question  may  be  viewed  generally  by  the  judges  of 
the  International  Court,  it  is  by  no  means  certain  that  they  will  not 
eventually  adopt  the  principle  of  domicile. 

(vii)   Convoy 

33.  In  pursuance  of  the  directions  contained  in  section  18  of  our 
general  instructions,  we  intimated  to  the  Conference  that  Great  Britain 
was  willing  to  recognize  the  immunity  from  visit  and  search  of  neutral 
vessels  under  convoy,  as  one  of  the  nov^  generally  accepted  principles 
of  international  law.  This  attitude  on  our  part  naturally  smoothed  the 
way  for  the  adoption  of  the  rules  comprised  in  chapter  VII  of  the 
Declaration.  Some  controversy  arose  as  to  the  procedure  to  be  pre- 
scribed in  cases  where  it  was  found  that  the  officer  commanding  the 
convoy  had  been  deceived,  and  that  contraband  was  in  fact  carried  on 
board  a  vessel  or  vessels  under  his  convoy.  The  solution  adopted,  as 
embodied  in  article  62,  vindicates  in  every  respect  the  freedom  from 
belligerent  interference  of  the  convoying  officer.  It  is  he  who  alone  is 
to  investigate  any  allegations  made  against  a  particular  vessel  or  vessels 
forming  part  of  his  convoy,  and  only  if  he  is  satisfied  of  their  truth  is 
he  called  upon  to  withdraw  his  protection  from  the  offending  vessels. 
These  provisions  seem  to  us  to  be  the  logical  deductions  to  be  drawn 
from  the  principle  of  immunity  if  once  admitted,  and  we  therefore 
agreed  to  them.  It  may  be  well  to  point  out  that  any  failure  on  the 
part  of  the  commander  of  the  convoy  to  carry  out  the  obligations  im- 
posed upon  him  under  article  62  could  not  be  redressed  by  resort  to  the 
International  Court,  which  would  have  no  jurisdiction  in  such  a  matter. 
The  injured  belligerent  would  have  to  seek  his  remedy  by  way  of  diplo- 
matic representation. 

(viii)  Resistance  to  Search 

34.  A  short  article  has  been  included  in  the  Declaration  with  a  view 
to  provide  a  definite  rule  as  to  the  liability  of  a  neutral  vessel  which 
resists  the  enforcement  of  the  belligerent's  right  of  visit  and  search. 
Cases  of  this  kind  may  come  before  the  International  Court,  and  the 
general  acceptance  of  a  guiding  rule  was  therefore  thought  desirable. 
It  has  been  agreed  that  forcible  resistance  on  the  part  of  a  neutral 
vessel  which  a  belligerent  man-of-war  proposes  to  search  exposes  such 


REPORT  OF  THE  BRITISH  DELEGATES  251 

vessel  to  all  the  natural  consequences  of  an  armed  conflict,  including 
the  risk  of  being  sunk  on  the  spot.  If,  as  the  result  of  such  conflict, 
she  is  not  sunk,  but  captured,  she  will  be  liable  to  condemnation  in  a 
prize  court,  whilst  the  cargo  will  be  treated  as  if  it  were  embarked  on 
an  enemy  ship.  It  was  made  quite  plain  in  the  course  of  the  discus- 
sion in  committee  on  this  question,  and  M.  Renault  has  clearly  ex- 
plained in  his  General  Report,  that  it  is  only  the  use  of  force  in  offering 
resistance  which  entails  these  consequences,  and  not  the  mere  attempt 
to  escape  visit  and  search  by  taking  to  flight. 

(ix)   Compensation 

35.  It  has  been  our  endeavour  to  obtain  the  recognition  of  liberal 
and  equitable  rules  in  respect  of  payment  of  compensation  to  injured 
neutrals.  We  are  glad  to  be  able  to  report  that  our  efforts  in  this 
direction  have  met  with  a  fair  measure  of  success.  Article  64  of  the 
Declaration  establishes  the  general  principle  that  where  a  neutral  vessel 
has  been  seized  and  brought  in,  compensation  is  due  to  the  owners  of 
vessel  or  cargo  if  it  is  found  by  the  prize  court  that  there  was  not 
sufficient  reason  to  justify  the  seizure.  The  article  also  covers  the 
case  of  a  ship  captured,  but  subsequently  released  without  being  brought 
to  judgment.  Nothing  is  laid  down  as  to  the  precise  manner  in  which 
damages  should  be  assessed.  It  has  been  thought  wisest  to  leave  full 
discretion  in  this  respect  to  the  courts. 

(x)   Conversion  of  Merchant-Vessels  into  Mcn-of-lVar  on  the  High 

Seas 

36.  The  one  subject  of  the  programme  which  has  found  no  mention 
in  the  Declaration  is  the  conversion  of  merchant-vessels  into  men-of- 
war  on  the  high  seas.  The  question  is  one  of  those  which  had  been 
left  unsolved  by  the  second  Peace  Conference,  and  so  decided  was  the 
division  of  opinion  subsequently  revealed  by  the  memoranda  exchanged 
by  the  several  governments  before  the  meeting  of  the  present  Naval 
Conference  that  it  had  been  found  impossible  to  state,  in  the  shape 
even  of  a  mere  Basis  of  Discussion,  an  underlying  general  principle 
commonly  accepted.  In  our  instructions  the  hope  was  nevertheless 
expressed  that  some  means  might  be  found  of  reconciling  the  opposing 
views  and  to  unite  on  the  basis  of  a  compromise,  for  which  we  were 
allowed  a  fairly  wide  discretion.     We  regret,  however,  that,  in  this 


252  NAVAL  CONFERENCE  AT  LONDON 

instance,  all  our  efforts  in  bringing  about  an  understanding  were  un- 
successful. We  did  not  fail  to  put  forward  the  arguments  which,  in 
the  view  of  His  Majesty's  Government,  militate  against  the  recogni- 
tion of  an  unrestricted  right  of  conversion  on  the  high  seas,  and  we 
endeavoured  in  vain  to  obtain,  in  return  for  a  recognition  of  such 
right  subject  to  proper  limitation,  some  guarantees  against  the  abuses 
to  which  it  appears  to  be  obviously  liable.  We  were  met  with  a  refusal 
to  make  any  concessions  or  to  abate  one  jot  from  the  claim  to  the  abso- 
lutely unfettered  exercise  of  the  right,  which  its  advocates  vindicate 
as  a  rule  forming  part  of  the  existing  law  of  nations.  In  these  cir- 
cumstances we  felt  that  we  had  no  option  but  to  decline  to  admit  the 
right,  and  the  result  is  that  the  question  remains  an  open  one. 

General  Observations 

37.  The  "final  provisions,"  comprising  articles  65-71  of  the  Declara- 
tion, lay  down  the  conditions  under  which  it  is  to  come  into  force  and 
be  applicable.  They  would  not  call  for  any  special  remarks,  except 
for  the  fact  that  they  invest  the  Declaration  with  a  conventional  char- 
acter. This  seems  therefore  the  place  for  entering  into  some  explana- 
tion concerning  the  form  and  nature  of  the  agreement  concluded. 

38.  Our  general  instructions  described  the  object  for  which  the 
Naval  Conference  was  assembled,  to  be  that  of  "formulating  in  precise 
terms  a  set  of  rules  relative  to  the  law  of  prize,  which  should  be  recog- 
nized as  embodying  doctrines  held  to  be  generally  binding,  as  part  of 
the  existing  law  of  nations."  It  was,  however,  admitted  to  be  unlikely 
that  a  unanimous  agreement  would  be  arrived  at  on  all  points  on  the 
basis  of  a  definition  of  existing  law.  Moreover,  it  was  obviously 
desirable  that  the  body  of  rules  adopted  as  representing  that  law  should 
be  complemented  by  stipulations  dealing  with  other  points  not  thereby 
covered,  by  which  the  Powers  might  be  willing  to  bind  themselves  for 
the  future.  His  Majesty's  Government  therefore  proposed  that  two 
instruments  should  be  negotiated:  one,  a  declaration  of  existing  law; 
the  other,  a  convention,  ancillary  thereto  and  supplementing  its  pro- 
visions by  additional  rules  accepted  as  operative  between  the  parties. 
The  Conference  thought  it  wise  to  proceed  in  the  first  place  with  draft- 
ing the  rules,  and  to  allow  the  question  of  the  exact  form  in  which  they 
were  to  be  ultimately  set  up,  to  stand  over  until  the  whole  ground 
actually  covered  could  be  surveyed.  When  finally  the  results  of  its 
discussions  were  reviewed,  it  became  evident  that  there  would  be  some 


REPORT  OF  THE  BRITISH  DELEGATES  253 

practical  difficulty  in  rigorously  following  the  course  suggested.  It  was, 
in  fact,  found  almost  impossible  to  agree  upon  a  clear  line  of  division  be- 
tween rules  generally  accepted  as  embodying  existing  law,  and  rules  ad- 
mitted to  be  new.  The  reason  was,  in  many  cases,  not  so  much  that 
the  rules  set  up  new  principles,  or,  indeed,  involved  any  serious  inno- 
vation of  practice,  but  that  some  slight  modification  or  development, 
which  it  had  been  necessary  to  introduce,  was,  even  if  in  entire  har- 
mony with  the  spirit  of  the  law  as  acknowledged  to  be  in  force,  held 
by  some  Powers  to  preclude  a  rule  being  described  as  part  of  the  exist- 
ing law,  because  it  was  not  strictly  covered  by  the  letter  of  their  prize 
legislation.  Such  a  hard-and-fast  criterion  of  classification  may,  ac- 
cording to  the  British  view  of  international  law  as  a  living  thing,  capable 
of  development  and  adaptation  from  time  to  time  to  new  conditions, 
seem  inconveniently  rigid  and  defective,  but  continental  Powers  whose 
legal  systems  are  entirely  built  up  on  the  strict  application  of  the 
minute  prescriptions  of  statutory  codes,  and  whose  view  of  interna- 
tional law  takes  little  account  of  any  but  their  own  national  regulations, 
hesitate,  not  perhaps  unnaturally,  to  accord  recognition  to  rules  and 
practices  not  in  absolute  accord  with  the  letter  of  those  regulations. 
39.  In  these  circumstances,  absolute  insistence  on  the  definite  sepa- 
ration of  new  rules  from  statements  of  existing  law,  and  on  their 
embodiment  in  different  instruments,  would  in  all  likelihood  have  led 
to  the  Declaration  being  reduced  to  a  comparatively  small  number  of 
articles,  restricted,  in  the  main,  to  the  enunciation  of  broad  principles, 
whilst  most  of  the  important  details  respecting  their  applications, 
together  with  many  rules  even  now  widely  applied  but  not  perhaps 
textually  recognized  hitherto  as  generally  binding  by  one  or  another  of 
the  signatory  Powers,  would  have  had  to  be  relegated  to  the  supple- 
mentary convention.  Such  a  result  it  seemed  to  us  desirable  to  avoid 
if  possible.  After  much  discussion  and  argument  with  our  foreign 
colleagues,  we  felt  convinced  that  it  would  be  better  to  have  only  one 
instrument,  covering  all  the  rules  agreed  upon,  so  long  as  we  obtained 
recognition  of  the  fact — which  was  not  seriously  disputed — that,  as 
a  body,  those  rules  do  amount  practically  to  a  statement  of  what  is  the 
essence  of  the  law  of  nations  properly  applicable  to  the  questions  at 
issue  under  present-day  conditions  of  maritime  commerce  and  warfare. 
We  believe  we  have  clearly  vindicated  this  principle  by  securing  the 
insertion  at  the  head  of  the  Declaration  of  the  preliminary  provision 
which  dominates  the  whole  series  of  articles.   It  is  therein  declared  that 


254  NAVAL  CONFERENCE  AT  LONDON 

in  the  opinion  of  the  signatory  Powers  the  rules  contained  in  the 
Declaration  "correspond  in  substance  with  the  generally  recognized 
principles  of  international  law."  The  significance  of  this  pronounce- 
ment, which  is  further  enhanced  by  the  recitals  of  the  preamble,  is 
well  brought  out  in  the  introductory  portion  of  M.  Renault's  general 
report.  He  explains  how  the  provisions  of  the  Declaration  are  in  the 
first  instance  binding  upon  the  signatory  Powers  in  virtue  of  their 
express  engagement,  under  article  66,  to  give  effect  thereto  in  their 
national  prize  courts  and  in  the  instructions  to  their  naval  officers. 
There  is  this  further  consequence  that  the  International  Court  will 
have  authority  to  apply  the  rules  generally,  as  being  in  conformity  with 
■  the  accepted  principles  of  international  law,  quite  apart  from  the 
specific  obligation  which  the  signatory  Powers  undertake  to  obey  them 
in  their  relations  with  each  other. 

40.  Theoretically  it  is  true  that  in  a  case  where  a  non-signatory 
Power  appearing  before  the  International  Court  declined  to  acknowl- 
edge any  liability  under  some  rule  of  the  Declaration  which  it  did  not 
admit  to  be  of  general  application,  the  court  would  be  free  to  hold  that, 
in  the  presence  of  the  opposing  contentions  as  to  what  the  law  was, 
no  generally  recognized  rule  governing  the  subject  in  dispute  existed. 
The  consequence,  however,  of  this  would  be  that,  under  article  7  of  the 
Prize  Court  Convention,  the  court  would  have  to  give  judgment  "in 
accordance  with  the  general  principles  of  justice  and  equity."  Is  it 
likely  that  a  court  having  a  majority  of  judges  whose  countries  have 
negotiated,  and  subscribed  to,  the  Declaration  of  London  would  come 
to  any  other  conclusion  than  that  the  rule  upon  which  the  States  most 
directly  concerned  had,  in  spite  of  wide  divergence  in  geographical 
position,  in  historical  traditions,  and  in  national  interests,  unanimously 
agreed,  truly  represented  the  justice  and  equity  of  the  case?  We  do 
not  therefore  think  we  are  going  too  far  in  declaring  our  belief  that 
the  end  which  His  Majesty's  Government  had  in  view  in  calling  the 
Naval  Conference  had  been  practically  realized  so  far  as  concerns  the 
general  obligatory  character  of  the  body  of  rules  laid  down.  To  what 
extent  the  rules  themselves  will  safeguard  the  legitimate  rights  and 
interests  of  Great  Britain,  and  how  far  their  claim  to  general  validity 
and  therefore  to  general  respect  is  made  good  by  their  inherent  justice, 
and  by  their  conformity  with  the  true  law  of  nations,  of  which,  accord- 
ing to  the  view  always  upheld  by  this  country,  it  is  an  essential  feature 
that  it  should  flow  from  the  recognition  of  the  principles  of  right  and 


REPORT  OF  THE  BRITISH  DELEGATES  255 

of  fair  dealing  common  to  all  civilized  peoples,  are  questions  which  we 
might  leave  to  the  judgment  of  His  Majesty's  Government. 

41.  It  remains  for  us  to  speak  of  a  matter  with  which,  although  not 
within  the  provinces  of  its  programme,  the  Conference  was  called  upon 
to  deal  in  consequence  of  a  proposal  submitted  at  a  late  stage  of  the 
proceedings  by  the  United  States'  delegation.  The  proposal,  of  which 
the  full  text  will  be  found  set  out  in  annex  65  to  the  minutes  of  the 
Conference^  was  intended  to  smooth  the  way  for  the  ratification  of  the 
Prize  Court  Convention  by  the  United  States,  whose  constitution  ap- 
pears to  place  insurmountable  obstacles  in  the  way  of  the  acceptance 
of  the  procedure  governing  the  recourse  to  the  International  Court  as 
laid  down  in  that  convention.  In  order  to  overcome  the  difficulty 
which,  it  was  explained,  precluded  any  right  of  appeal  being  allowed 
from  a  decision  of  the  United  States'  Supreme  Court,  the  Conference 
was  asked  to  express  its  acceptance  of  the  principle  that,  as  regards 
countries  in  which  such  constitutional  difficulty  arose,  all  proceedings 
in  the  International  Prize  Court  should  be  treated  as  a  rehearing  of  the 
case  de  novo,  in  the  form  of  an  action  for  compensation,  whereby  the 
validity  of  the  judgments  of  the  national  courts  would  remain  un- 
affected, whilst  the  duty  of  carrying  out  a  decision  of  the  International 
Court  ordering  the  payment  of  compensation  would  fall  upon  the 
government  concerned. 

42.  The  proposal  was  further  coupled  with  the  suggestion  that  the 
jurisdiction  of  the  International  Prize  Court  might  be  extended,  by 
agreem.ent  between  two  or  more  of  the  signatory  Powers,  to  cover 
cases  at  present  excluded  from  its  jurisdiction  by  the  express  terms  of 
the  Prize  Court  Convention,  and  that  in  the  hearing  of  such  cases  that 
court  should  have  the  functions,  and  follow  the  procedure,  laid  down 
in  the  Draft  Convention  relative  to  the  creation  of  a  Judicial  Arbitra- 
tion Court,  which  was  annexed  to  the  Final  Act  of  the  second  Peace 
Conference  of  1907. 

43.  Great  hesitation  was  felt  in  approaching  these  questions.  It  was 
undeniable  that  they  lay  wholly  outside  the  programme  which  the  Con- 
ference had  been  invited  to  discuss,  and  to  which  the  Powers  accepting 
the  invitation  had  expressly  assented.  It  was,  however,  not  disputed 
that  so  much  of  the  United  States'  proposal  as  related  to  the  difficul- 
ties in  the  way  of  the  ratification  of  the  Prize  Court  Convention  was 


1  See  British  Parliamentary  Paper,  Miscellaneous.  No.  5   (1909),  p.  253.     [Cd. 
4555.] 


256  NAVAL   CONFERENCE  AT  LONDON 

in  SO  far  germane  to  the  labours  of  the  Conference,  as  these  also  were 
avowedly  directed  to  preparing  the  way  for  the  more  general  accept- 
ance of  the  Prize  Court  Convention.  As  it  must  clearly  be  desired  by 
all  countries  interested  in  the  establishment  of  the  International  Prize 
Court  that  the  United  States  should  be  one  of  the  Powers  submitting  to 
its  jurisdiction  and  bound  by  its  decisions,  the  Conference  thought  it 
right,  notwithstanding  its  lack  of  formal  authority,  to  go  so  far  as  to 
express  the  wish  ("voeu")  which  stands  recorded  in  the  final  Protocol^ 
of  its  proceedings,  and  of  which  the  substance  is  that  the  attention  of 
the  various  governments  represented  is  called  by  their  delegates  to  the 
desirability  of  allowing  such  countries  as  are  precluded  by  the  terms 
of  their  constitution  from  ratifying  the  Prize  Court  Convention  in  its 
present  form,  to  do  so  with  a  reservation  in  the  sense  of  the  first  part 
of  the  United  States'  proposal. 

44.  On  the  other  hand,  the  question  of  setting  up  the  Judicial  Arbi- 
tration Court,  which  seemed  to  have  no  necessary  connection  with  the 
Prize  Court  Convention,  was  decided  by  all  the  Delegations,  except 
that  which  had  brought  it  forward,  to  be  one  which  the  Conference 
could  not  discuss.  It  was  observed  with  conclusive  force  that  the 
Conference  was  attended  by  delegates  of  the  principal  naval  Powers, 
whose  unanimous  agreement  on  questions  of  naval  warfare  might  not 
unreasonably  be  expected  to  carry  weight  with  other  States,  but  which 
had  neither  formal  nor  moral  authority  for  taking  up  a  scheme  that 
had  failed  to  find  general  acceptance  at  The  Hague  owing  to  the  de- 
cided opposition  of  the  very  Powers  not  represented  at  the  present 
Naval  Conference. 

45.  In  conclusion  we  desire  to  bring  to  your  notice  the  admirable 
way  in  which  we  have  been  served  by  the  secretaries  attached  to  our 
del'^gation.  Mr.  Norman,  who  acted  as  Secretary-General  of  the  Con- 
ference, earned  the  marked  approval  of  all  its  members  by  the  pains- 
taking and  thoroughly  efficient  manner  in  which  he  organized  and 
superintended  the  business  arrangements  of  so  large  an  assembly.  The 
secretariat  was  composed  of  the  secretaries  of  all  the  delegations,  and 
at  our  last  meeting  M.  Renault,  who,  as  Chairman  of  Committee,  was 
necessarily  in  the  closest  touch  with  the  secretariat,  expressed,  in  terms 
which  were  warmly  applauded,  the  appreciation  by  the  Conference  of 
the  highly  satisfactory  manner  in  which  its  duties  had  been  performed. 

1  See  p.  187. 


REPORT  OF  THE  BRITISH  DELEGATES  257 

As  all  the  proceedings  were  in  French,  it  was  unavoidable  that  a  large 
and  important  share  of  the  work  connected  with  the  preparation  and 
revision  of  the  minutes  fell  to  the  secretaries  of  the  French  delegation, 
who  most  readily  devoted  to  this,  at  times,  arduous  work  their  remark- 
able skill  and  unfailing  patience.  We  feel  that,  as  representatives  of 
the  Power  whose  plenipotentiary  had  the  honour  of  presiding  over  the 
Conference,  we  are  under  a  special  obligation  in  this  respect  to  M.  de 
Sillac  and  the  Baron  Clauzel,  which  we  wish  gratefully  to  acknowledge. 
Both  as  regards  the  general  work  of  the  Conference  and  in  assisting 
more  directly  the  British  Delegation,  Mr.  Norman  was  ably  seconded 
by  Mr.  Tufton,  whose  zeal,  capacity,  and  unwearying  attention  at  all 
times  much  facilitated  our  labours,  and  by  Mr.  Bray,  whose  knowledge, 
judgment,  and  advice  proved  on  more  than  one  occasion  of  the  greatest 
service  in  dealing  with  technical  questions  of  importance. 

We  have  the  honour  to  be. 
Sir, 
Your  most  obedient  servants, 

Desart. 

C.  L.  Ottley. 

Edmond  J.  W.  Slade. 

Eyre  A.   Crowe. 

C.  J.  B.  Hurst. 


Bibliography 

Adams,  William.     The  Declaration  of  London.     London,  1911. 

Alvarez,  Alejandro.  La  codification  du  droit  international,  scs  tendances — ses 
bases.  Paris,  1912.  [Part  1,  chap.  8.  Tendances  modernes  du  droit  in- 
ternational d'apres  les  conferences  de  La  Haye  et  Londres.]  , 

"Approval  of  the  Declaration  of  London  by  the  United  States  Senate  on  April 
24,  1912."    American  journal  of  international  law  (1912),  6:  723. 

Barclay,  Thomas.  "The  Declaration  of  London."  Fortnightly  review  (July, 
1911),  90:  126. 

The   Turco-Italian  war  and  its  problems,  with  appendices  containing 


the  chief  state  papers  bearing  on  the  subject.     With  an  additional  chapter 
on  Moslem  feeling,  by  the  Rt.  Hon.  Ameer  AH,  P.C.    London,  1912. 

Baty,  Thomas.    Britain  and  sea  law.    London,  1911. 

.     "The  Carthage  and  Manouba."       Law  magazine  and  review   (August, 

1913),  38:  465.     [Discussed  in  relation  to  the  Declaration  of  London.] 

"The   Declaration   of    London."     Concord    (April,    1911),   42.      [Letter 


criticizing  the  Declaration.] 
.     "The  Declaration  of  London."    Empire  review  (July,  1911),  21:  361. 


.     "The  Declaration  of  London."    Law  magazine  and  review  (May,  1913), 

38 :  344. 

.  "The  inadequacy  of  litigation  as  a  protection  against  cruisers."  Inter- 
national Law  Association,  Report  of  the  26th  Conference  held  at  the  Guild- 
hall, London,  August  2-5,  1910,  p.  115.     London,  1910. 

Beckenkamp,  Otto.  Die  kriegskonterbande  in  der  behandlung  des  instituts  fiir 
internationalcs  rccht  und  nach  der  Londoner  Erkldrung  iibcr  das  seekriegs- 
recht.    Breslau,  1910. 

Bentwich,  Norman  de  Mattos.  The  Declaration  of  London,  with  an  introduc- 
tion and  notes  and  appendices.    London,  1911. 

.     "The  Declaration  of  London."    Fortnightly  review  (1910),  98:  327. 


Beresford,  Lord  Charles  William  de  la  Poer.  The  betrayal;  being  a  record  of 
facts  concerning  naval  policy  and  administration  from  the  year  1902  to  the 
present  time.    London,  1912. 

Bernsten,  Karl  Hamilkar.    Das  Seekriegsrecht.    Berlin,  1911. 


260  BIBLIOGRAPHY 

Bonfils,  Henry  Joseph  Frangois  Xavier.  Manuel  de  droit  international  public 
{droit  des  gens)  destine  aux  etudiants  dcs  facultes  de  droit  et  aux  aspirants 
aux  fonctions  diplomatiques  et  consulaires.  Seventh  edition,  revised 
and  brought  up  to  date,  containing  commentary  on  the  acts  of  the  Peace 
Conferences  of  1899  and  1907  and  on  the  Naval  Declaration  of  London  of 
February  26,  1909,  by  Paul  Fauchille.     Paris,  1914. 

Boucher,  Paul.  Les  cotiventions  relatives  an  droit  de  la  guerre,  letir  portee 
pratique.    1913. 

Bowles,  Thomas  Gibson.  "The  Declaration  of  London."  Nineteenth  century 
and  after  (May,  1909),  65:  744. 

Sea  law  and  sea  power  as  they  would  be  affected  by  recent  proposals; 


with  reasons  against  those  proposals.    London,  1910. 

Bray,  Francis  Edmond.    British  rights  at  sea  under  the  Declaration  of  London. 
London,  1911. 

Brentano,  Lujo.    "The  right  of  capture."    Letter  to  The  Nation,  London  (Janu- 
ary 10,  1914),  14:  638. 

"Right  of  search  and  right  of  capture."    Letter  to  The  Nation,  London 


(February  21,  1914),  14:  866. 

Bridge,  Cyprian  A.  G.     "How  the  Declaration  of  London  concerns  the  navy." 
Naval  annual,  1911,  p.  173. 

"Right  of  search  and  right  of  capture."     Letter  to  The  Nation,  London 


(January  17,  1914),  14:  674. 

.     "Right  of  search  and  right  of  capture."    Letter  to  The  Nation,  London 

(February  14,  1914),  14:  829. 

"The  Carthage  and  Manouba  cases  before  the  Permanent  Court  of  Arbitration," 
Juridical  review  (1913),  25:  213. 

Catellani,  Enrico.  La  Dichiaradone  di  Londra  relativa  al  diritto  dclla  gucrra 
marittima.    Padua,  1912. 

Charles,  Garfield.  Treaties,  conventions,  international  acts,  protocols,  and  agree- 
ments between  the  United  States  of  America  and  other  Powers,  jgio-1913. 
Senate  Document  No.  1063,  62d  Congress,  3d  session.  Washington,  1913. 
[Supplement  to  Senate  Document  No.  357,  61st  Congress,  2d  session,    vol.  3.] 

Cobbett,  Pitt.  Cases  and  opinions  on  international  law,  and  various  points  of 
English  lazv  connected  therewith.  Collected  and  digested  from  English  and 
foreign  reports,  official  documents,  and  other  sources.  With  notes  con- 
taining the  views  of  the  text-writers  on  the  topics  referred  to,  supplementary 
cases,  treaties,  and  statutes.     Third  edition,  London,   1909-13.    2  vol. 

Cohen,  Arthur.  "The  Declaration  of  London."  International  Law  Association, 
Report  of  the  26th  Conference  held  at  the  Guildhall,  London,  August  2-5, 
i()io.    p.  67.     London,  1910. 

.     "The  Declaration  of  London."    Law  journal,  London  (August  6,  1910), 

45:  523.     [Read  before  the  conference  of  the  International  Law  Association, 
August  5,  1910.] 


BIBLIOGRAPHY  261 

Cohen,  Arthur.     "The  Declaration  of   London."     Quarterly  review,  27 : 9. 

Comite  maritime  international,  Bulletins,  Nos.  33  and  37,  Antwerp,  1913, 
Conference  of  Copenhagen,  May,  1913.  Declaration  de  Londres  du  26 
fevrier  1909  relative  au  droit  de  la  guerre  maritime. 

Coquet,  Etienne.  "Italic  et  Turquie — Guerre— Rapports  entre  les  belligerants — 
Guerre  sur  mer — Textes  applicables — Valeur  juridique  de  la  Declaration  de 
Londres."     Revue  generate  de  droit  international  public   (1914),  21:   105. 

Custance,  Sir  Reginald.  "The  naval  case  for  ratifying  the  Declaration  of  Lon- 
don."   Nineteenth  century  and  after  (March,  1912),  71:  435. 

"Declaration  navale  de  Londres  et  Convention  sur  la  cour  des  prises.  Discus- 
sions au  parlement  britannique."     Documents  interparlementaires,  Nos.  8-9. 

"Declaration,  A  notable."  Commercial  and  fitiancial  chronicle  (March  18,  1911), 
92:688. 

"Declaration  of  London."    Canadian  law  times,  31 :  441. 

"The  Declaration  of  London."     Quarterly  review   (October,   1901),  211:  464. 

"The  Declaration  of  London."     Round  table   (March,  1912),  2:285. 

Declaration  of  International  Naval  Conference,  signed  by  the  delegates  of  the 
United  States  to  the  International  Naval  Conference  held  at  London,  Eng- 
land, from  December  4,  1908,  to  February  26,  igog.  United  States  Senate 
Document  No.  563,  63d  Congress,  2d  session.  [Contains  the  note  of  March 
27,  1908,  from  the  British  Embassy,  the  call  for  the  conference,  the  instruc- 
tions to  the  American  delegates,  the  report  of  the  American  delegates,  and 
Renault's  report.] 

Dembski,  V.  Europe  and  the  new  sea  law;  a  manual  of  international  politics 
and  maritime  law.    London,  1912. 

Despagnet,  Frantz  Clement  Rene.  Cours  de  droit  international  public.  Fourth 
edition,  completely  revised,  enlarged,  and  brought  up  to  date  by  Ch.  de 
Boeck.     Paris,  1910. 

"Diplomatic  correspondence  between  the  United  States  and  belligerent  Govern- 
ments relating  to  neutral  rights  and  commerce."  Supplement  to  the  Ameri- 
can journal  of  international  law  (1915),  9:  1,  and  (1916)  special  number. 
p.  1. 

Dupuis,  Charles.  "La  discussion  de  la  Declaration  de  Londres  au  parlement 
britannique."  Revue  generale  de  droit  international  public  (July-August, 
1911),  18:  369. 

.     Le  droit  de  la  guerre  maritime  d'apres  les  Conferences  de  la  Haye  et  de 

Londres.     Paris,  1911. 

"Le    rejet   du    naval   prize   bill   par    la   Chambre    des    Lords."     Revue 


generale  de  droit  international  public  (1912),  19:  58. 

Dykes,  D.  Oswald.     "The  laws  of  naval  warfare :  the  Declaration  of  London." 
Juridical  review  (July,  1909),  21:  113. 


262  BIBLIOGRAPHY 

Eickhoflf,  Richard.  "Was  wird  aus  der  Londoner  Seerechtsdeklaration."  Der 
Tag,  February  3,  1914. 

Endres,  Karl.  Die  volkerrechtlichen  grunds'dtse  der  kriegfiihrung  zu  lande  und 
sur  see.    Berlin,  1909. 

"Erlauterung  zu  den  ergebnissen  der  in  London  vom.  4.  12.  08  bis  zum  26.  2.  09 
abgehaltenen  Seekriegsrechskonferenz."  Marine  rundschau  (January,  1910), 
supplement. 

Excubitor.  "A  defense  of  the  Declaration  of  London."  Fortnightly  rezneiv 
(1911),  89:405. 

Fitger.  Emil.  Das  seekreigsrecht  nach  den  beschliissen  der  internationalen 
Konferenzcn  vom  Haag  1907  und  vom  London  igoS-igog.     Berlin,  1909. 

"Neue   bestrebungen    in    England    fiir   aufhebung   des    seebeuterechts." 


Zeitschrift  fiir  volkerrecht  (1913),  7:  395. 

Fitzgerald,  Admiral  C.  C.  Penrose.  "The  Declaration  of  London.  A  reply  to 
'Excubitor.'"    Fortnightly  review  (1911),  89:  792. 

Flockher,  von.  "Die  ergebnisse  der  Londoner  Seekriegsrechtskonferenz." 
Morgen  (1909),  p.  588. 

Flourens,  Emile.  "Die  Haager  Kongresse,  ihr  ursprung  und  ihre  folgen." 
Deutsche  revue  (1911),  3:  68. 

Foreign  Relations  of  the  United  States,  igog.  Washington,  Government  Print- 
ing Office,  1914. 

France.  Assemblee  nationale,  1871. — Chambre  des  deputes.  Projet  de  loi  portant 
approbation  de  la  declaration  relative  au  droit  de  la  guerre  maritime,  signee 
a  Londres  le  26  fevrier  1909,  presente  au  nom  de  M.  Armand  Fallieres, 
president  de  la  Republique  frangaise,  par  M.  de  Selves,  ministre  des  afifaires 
etrangeres,  et  par  M.  Delcasse,  ministre  de  la  marine.  Renvoye  a  la  Com- 
mission des  affaires  exterieures,  des  protectorats,  et  des  colonies,  30  juin 
1911.  Journal  oMciel,  Chambres  des  deputes.  Documents  parlementaires, 
1911,  p.  615    (10th  legislature-session  ordinaire  de  1911,  Annexe  no.   1103). 

Franck,  L.  "La  Declaration  de  Londres  et  les  interets  du  commerce  neutre." 
Droit  maritime,  1910. 

Great  Britain.  The  parliamentary  debates  (official  report).  Fifth  series.  House 
of  Lords  debates,  vols.  7,  10;  House  of  Commons  debates,  vols.  27,  30,  32. 

Great  Britain.  Parliamentary  papers,  correspondence  regarding  the  Declara- 
tion of  London.  Cd.  5418  and  Cd.  5718.  [With  the  Navy  League  and 
Chambers  of  Commerce.] 

.    Parliamentary  papers.  Miscellaneous  No.  4,  1909,  Cd.  4554.     [Contains 

instructions,  text  of  declaration,  commentary,  and  British  correspondence.] 

Parliamentary   papers,    Miscellaneous    No.    5,    1909,    Cd.    4555.      [Con- 


tains precis  of  proceedings  from  day  to  day.] 


BIBLIOGRAPHY  263 

Gregory,  Charles  Noble.  "The  doctrine  of  continuous  voyage."  International 
Law  Association,  Report  of  the  26th  Conference  held  at  the  Guildhall,  Lon- 
don, August  2-5,  19 TO,  p.  119.    London,  1910. 

Giildenagel,  Karl.  Verfolgung  und  rechtsfolgen  des  blockadebruchs.  Tubingen, 
1911. 

Hall,  John  Ashley.     The  law  of  naval  warfare.    London,  1914. 

Hall,  William  Edward.  A  treatise  on  international  law.  Seventh  edition,  Ox- 
ford, 1917. 

Harris,  Leverton.  "The  Declaration  of  London."  National  review  (1910), 
56:  393. 

Harrison,  Frederick.  "The  Declaration  of  London."  English  review  (March, 
1911),  7:  709. 

Hazeltine,  Harold  Dexter.  The  law  of  the  air;  three  lectures  delivered  in  the 
University  of  London  at  the  request  of  the  Faculty  of  laws.    London,  1911. 

Hilty,  Carl.  "Die  kriegsrechtlichen  beschliisse  der  zweiten  Haager  Konferenz 
und  der  darauf  folgenden  Londoner  Seerechtskonferenz."  Politisches 
jahrbuch  der  Schweizerischen  eidgenossenschaft,  1909,  p.  223. 

Hirschmann,  Otto.  Das  internationale  prisenrecht  nach  den  beschlilssen  der  IL 
Haager  friedens — und  der  Londoner  Seekriegsrechtskonferenz.  Munich  and 
Berlin,  1912. 

Hold  von  Ferneck,  Alexander  Freiherr.  "Die  reform  des  seekriegsrechts  durch 
die  Londoner  Konferenz  1908-09."    Handbuch  des  volkerrechts,  vol.  4:  pt.  3. 

Holland,  Thomas  Erskine.  "Changements  proposes  en  droit  des  prises  mari- 
times.  La  convention  de  la  cour  des  prises  et  la  Declaration  de  Londres." 
Revue  de  droit  international  et  de  legislation  comparee,  2d  series,  13 :  2)?>7. 
Translation  by  Ernest  Nys. 

"The  immunity  of  private  property  at  sea.  L  Historical.  H.  Theoretical." 
Quarterly  review  (January,   1911),  214:   1;    (July,   1911),  215:   1. 

"International  prize  law  and  the  Declaration  of  London."  Edinburgh  review 
(July,  1909),  210:  162. 

Intrigila,  B.  Sulla  illegittimita  del  sequestra  e  della  cattura  dei  velieri  "Vasilios" 
ed  "Aghios  Georghios"  di  bandiera  ellenica.  Rome,  1913.  [Criticizes  prize 
court  decision  as  being  based  on  Declaration  of  London  which  was  not 
ratified  by  Italy  or  signed  by  Greece.] 

Jacot,  Auguste.     La  saisie  des  navires  neutrcs  dans  la  guerre  maritime.     Dijon, 
•    1912. 

Kleen,  Richard.  Kodifcerad  handbok  i  krigets  lagar  tell  lands  och  till  sjos  enlight 
aftal  och  vcdcrtagen  sedvlinja  bland  hypsade  folk.<;lag.  Stockholm,  1909. 
[Codified  manual  of  law  of  war  on  land  and  sea.  Four  parts:  1.  Funda- 
mental principles.  2.  Belligerent  relations.  3.  Relations  between  belligerents 
and  neutrals.    4.  Visit  and  prizes.] 


264  BIBLIOGRAPHY 

Krauel,  Richard.    "Die  internationale  Konferenz  iiber  seekriegsrecht  in  London." 
Deutsche  reznie   (June,  1909),  34:  301. 

La  Hautiere,  R.  de.     Conference  navale  de  Londres  4  decemhre  1908-26  fevrier 
igog;  contrebande  de  guerre  et  assistance  hostile.     Bordeaux,  1910. 

Lange,  Christian  L.    Note  sur  la  Conference  navale  de  Londres.     [Publication 
of  the  Interparliamentary  Union.] 

Lawrence,  Thomas  Joseph.   "The  Declaration  of  London  and  food-stuffs."    Con- 
temporary review   (March,  1911),  99:  348. 

.     The  principles  of  international  law.     Fifth  edition.     New  York,   1913. 


Lemonon,  Ernest.     La  Conference  navale  de  Londres   {decemhre  1908-fevrier 
1909).     Paris,  1909. 

-.     "La    Conference    navale    de    Londres    (decembre    1908-fevrier    1909)." 


Questions  diplomatiques  et  coloniales  (July  1,  1909),  28:  24. 


— .  "La  Conference  navale  de  Londres  (decembre  1908-fevrier  1909)." 
Revue  de  droit  international  et  de  legislation  comparee,  1909,  2d  series, 
11:  239;  435. 

"La    Conference    navale    de    Londres    (decembre    1908-fevrier    1909)." 


Revue  politique  et  parlementaire  (July  10,  1909),  61:  47. 

Leyland,  John.  "The  Declaration  of  London.  Points  for  consideration."  Naval 
annual,  1911,  p.  163. 

Lewin,  P.  Evans.  "Une  opinion  anglaise  sur  la  Declaration  de  Londres." 
Questions  diplomatiques  et  coloniales   (February  1,  1912),  2)2i:   139. 

Loreburn,  Robert  Threshie  Reed.     Capture  at  sea.    London,  1913. 

Macdonnell,  Sir  John.  "The  Declaration  of  London."  International  Law 
Association  Report  of  the  26th  Conference,  held  at  the  Guildhall,  London, 
August  2-5,  1910,  p.  89.     London,  1910. 

.     "The  Declaration  of  London."     Journal  of  the  society  of  comparative 

legislation  (1910),  11 :  68. 

-.     "The    Declaration    of    London."      Law    journal,    London    (August    6, 


1910),  45:  526.     [Summary  of  a  paper  read  before  the  Conference  of  the 
International  Law  Association.] 

Monsell,    B.    E.     "The    Declaration    of    London."      Fortnightly   review    (1911), 
89:  263. 

Montagu,  V.  A.     "For  and  against  the  Declaration  of  London."     Nineteenth 
century  and  after  (March,  1911),  69:  414. 

Myers,  Denys  P.     "The  legal  basis  of  the  rules  of  blockade  in  the  Declaration 
of  London."    American  journal  of  international  law  (July,  1910),  4:  571. 

"Naval  prize  bill."    Juridical  review  (1913),  25:  209.  [In  notes  on  international 
law.] 


BIBLIOGRAPHY  265 

"The  Naval  prize  bill  and  the  Declaration  of  London."    American  journal  of  in- 
ternational law  (1912),  6:  180. 

Neuberg.    Das  meer  und  das  rccht.     1911. 

Niemeyer,  Theodore.     Das  seekriegsrecht  nach  der  Londoner  Deklaraiion  vom 
26  Februar  1909.     Berlin,  1910. 

.     "Die    Londoner    Seekriegsrechtskonferenz."     Der    Tag,    1909,    No.    30. 


.     Urkundenbuch  cum  seekriegsrecht.    Berlin,  1913.     [Part  II  of  a  manual 

of  maritime  law,  to  appear  in  1914.] 

Nippold,  Otfried.     Die  zweite  Haagcr  Friedenskonferenz.     Leipzig,  1908-11. 

Oppenheim,  Lassa  Francis  Lawrence.     "Enemy  character  after  the  Declaration 
of  London."    Law  quarterly  review  (1909),  25:  372. 

.    International  law,  a  treatise.     Second  edition,  London,  1912. 

Pachnicke,  Hermann.    "Die  neiiere  entwicklung  des  seekriegsrechts."    Zeitschrift 
fiir  politik  (1910),  4:  125. 

Pastureau,  Lucien.    Transports  interdits  aux  neutres.     1912. 

Patterson,  R.  A.     "The  Declaration  of  London."     Contemporarv  reviezv   (July, 
1911),  100:  77. 

Pohl,  Heinrich.      Deutsche  prisengerichtsbarkeit ;  ihre  reform  diirch  das  Haager 
abkommen  vom  iS.    oktober  1907.    Tiibingen,  1911. 

.    England  und  die  Londoner  Deklaration.     Berlin,  1915. 

Politis,  Nicolas.    "La  Declaration  de  Londres  de  1909  sur  divers  points  de  droit 
maritime."    Journal  du  droit  international  privc  (1909),  36:  897. 

.     "La  Declaration  de  Londres  relative  au  droit  de  la  guerre  maritime." 


I'Association  frangaise  de  droit  maritime.  Bulletin,  No.  55.     Paris,  1913. 

Pollock,  Sir.  Frederick.  "The  Declaration  of  London."  La7v  quarterlv  review 
(1911),  27:  269. 

Posse,  Hans  Ernest.  "Das  seebeuterecht,  sein  geltungsgebiet  und  sein  einfluss 
auf  handel  und  wirtschaft."  Zeitschrift  fiir  internationales  recht  (1911), 
21:  123. 

Potter,  J.  Wilson  and  V.  A.  Montagu.  "For  and  against  the  Declaration  of 
London."    Nineteenth  century  and  after  (1911),  69:  402. 

Rapisardi-Mirabelli,  Andrea.  "La  guerre  italo-turque  et  le  droit  des  gens." 
Revue  de  droit  international  et  de  legislation  comparee  (1912,  1913),  14:  159, 
411;  15:  85,  523,  649.  [Discusses  bearing  of  Hague  Conventions  and  Decla- 
ration of  London.] 

Reinsch,  Paul  S.  "The  Declaration  of  London."  North  American  review, 
190:  479. 


266  BIBLIOGRAPHY 

Renault,  Louis.     La  Conference  navale  de  Londres.     Paris,  1909. 

"Right  of   capture  and   contraband   of   war.     A   Hanseatic   view."     Economist 
(September,  1913),  77:  594. 

Rollin,  Henry.     "La  question  de  la  contrebande  de  guerre."     Revue  politique  et 
parlementaire  (September  10,  1913),  77:  443. 

"La  contrebande  de  guerre  d'apres  la  Declaration  de  Londres."    Revue 


maritime  (1913),  197:  155,  299. 

Root,  Elihu.  "The  real  significance  of  the  Declaration  of  London."  American 
journal  of  international  law  (July,  1912),  6:  583.  [Address  at  the  sixth 
annual  meeting  of  the  American  Society  of  International  Law,  April  25, 
1912.] 

Schramm,  Georg.    Das  prisenrecht  in  seiner  neuesten  gestalt.    Berlin,  1913. 

Die    verhandlungcn    und    beschliisse    der    Londoner    Seekriegsrechts- 


konferenc,  dezember  1908  his  februar  1909.    Berlin,  1911. 

Scott,    James    Brown.      "The   Declaration   of   London   of    February    26,    1909. 
American  journal  of  international  law  (1914),  8:  274,  520. 

A   survey   of  international  relations   between   the    United   States   and 


Germany,  August  i,  1914-April  6,  1917,  based  on  official  documents.     New 
York,  1917. 

Smith,  Frederick  Edwin.  International  law.  Fourth  edition,  revised  and  en- 
larged by  J.  Wylie.  Boston,  London,  1911.  [Appendix  C.  "The  contro- 
versy concerning  the  Declaration  of  London."     p.  353.] 

Sperry,  Charles  S.  "The  London  Naval  Conference."  American  Society  of 
International  Law,  Proceedings  (1909),  p.  84. 

"Status  of  the  Declaration  of  London."  Am,erican  journal  of  international  law 
(1915),  9:  199. 

Staudacher,  Herman.  Die  friedensblockade.  Ein  beitrag  sur  theorie  und  praxis 
der  nichtkriegerischen  selbsthilfe.    Leipsic,  1909. 

Stockton,  Charles  H.  "The  London  Naval  Conference."  American  Society  of 
International  Law,  Proceedings  (1909),  p.  61. 

.    "The  International  Naval  Conference  of  London,  1908-1909."  American 


journal  of  international  law  (1909),  3:  596. 

Stowell,  Ellery  C.  "The  International  Naval  Conference  and  the  Declaration 
of  London."     American  political  science  review  (November,  1909),  3:  489. 

Streit,  Georgios.     The  Naval  Conference  of  London.    [In  Greek.]    Athens,  1909. 

Tachi,  S.  "Contraband  goods  in  the  Declaration  of  London."  Revue  de  droit 
international  et  diplomatique  (January-February,  1915),  vol.  13,  Nos.  5 
and  6.     [In  Japanese.] 


BIBLIOGRAPHY  267 

Tachi,  S.  "Declaration  of  London."   Revue  de  droit  international  et  diplomatique 
(December,  1914),  vol.  13,  No.  4.     [In  Japanese.] 

.    "Unneutral   service  in  the   Declaration  of   London."     Revue   de   droit 


international  et  diplomatique  (July,  1913),  vol.  11,  No.  10.     [In  Japanese.] 

Trautmann,  Oskar.  "Die  frage  der  zerstorung  neutraler  prizen  und  ihre 
eroterung  auf  der  Haager  und  der  Londoner  Konferenz."  Archiv  fur 
offentliches  Recht  (1910),  26:  513. 

Ullmann,  Emanuel  von.  "Die  fortbildung  des  seekriegsrechts  durch  die  Lon- 
doner Deklaration  vom,  26  Februar,  1909."  Jahrbuch  des  offentlichen  Rechts 
der  Gegenwart  (1910),  4:  1. 

"Prisenangelegenheiten."     Zeitschrift  fur  volkerrechts   (1913),  pt.  3/4, 


vol.  7,  p.  332. 

United  States.  Naval  War  College.  International  law  topics,  The  Declaration 
of  London  of  February  26,  1909.  Washington,  1910.  [This  volume  con- 
tains the  call  for  the  Conference,  and  the  French  text  of  the  general  re- 
port. Final  Protocol  and  Declaration,  with  English  translation  in  parallel 
arrangement.] 

.     Naval  War  College.     International  law  situations,  with  solutions  and 

notes,  igio.  Washington,  1911.  [Discussion  of  Article  20,  pursuit  of  block- 
ade runners,  pp.  79-89;  discussion  of  Article  2)2>,  destination  of  contraband, 
pp.  98-107;  discussion  of  Articles  55,  56,  64,  transfer  of  flag,  pp.  108-12, 
115-127.] 


— .  Naval  War  College.  International  law  situations,  with  solutions  and  notes, 
1911.  Washington,  1911.  [Protection  to  neutral  vessels:  rule  of  the  Decla- 
ration of  London,  p.  46;  destruction  of  neutral  vessels,  pp.  69-81;  delivery 
of  contraband  at  sea,  p.  107;  proportion  of  contraband,  pp.  120-27.] 

Naval  War  College.     International  law  situations,  with  solutions  and 


notes,  1912.  Washington,  1912.  [Cuba  neutral;  application  of  the  Declara- 
tion of  London,  p.  108;  taking  coal  into  neutral  ports,  p.  137;  conversion  of 
merchant  ships  into  war-ships  (British  delegates'  instructions  and  report, 
London  Conference),  p.  187.] 

Valentine,  G.  D.  "The  Declaration  of  London."  Juridical  review  (July,  1911), 
23:   1,  103. 

Wehberg,  Hans.  Das  beuterecht  ini  land — und  seckriege.  Dargcstellt  untcr 
besondcrcr  beriicksiclitigung  der  modernen  entzvicklung  des  internationalen 
handels.     Tubingen,  1909. 


— .  Capture  in  war  on  land  and  sea.  Translated  from  Das  beuterecht  im 
land — und  seekriegc ;  with  an  introduction  by  John  M.  Robertson.  London, 
1911. 

— .    Das  scekriegsrecht.     Stuttgart,  1915. 


— .  Die  abkommen  der  Haager  friedenskonferenzen  der  Londoner 
Seekriegskonferenz  nebst  Genfer  konvention.  Mit  worwort  vom  Professor 
Dr.  Zorn   Bann.     Berlin,   1910. 


268  BIBLIOGRAPHY 

IVeissbuch  ilber  die  ergebnisse  der  in  London  bis  zum  26.  2.  og  abgehaltenen 
Seekriegsrechtskotiferenc.  Official  edition,  Reichstag,  1907-09,  No.  1286; 
1909-10,  No.  33. 

Westlake,  John.  "The  Declaration  of  London."  Nineteenth  century  and  after, 
(March,  1910),  67:  505.  Reprinted  in  The  collected  papers  of  John  West- 
lake  on  public  international  law.     Cambridge,  1914. 

.     "The  Declaration  of  London."    Letters  to  the  London  Times,  February 

6,  9,  25,  March  2,   13,   16,  18,   1911.     Reprinted  in  The  collected  papers  of 
John  Westlake  on  public  international  law.    Cambridge,  1914. 

Willms,  Hermann.  Die  umwandlung  von  kauffahrteischiffen  in  kriegsschiffe. 
Tiibingen,   1912. 

Wilson,  H.  W.  "The  Declaration  of  London  and  its  surrenders  to  Germany." 
National  review  (March,  1911),  57:  54. 

.     "Sea  law  made  in  Germany."    National  review  (January,  1911),  56:  740. 


"The  withdrawal  of  the  Declaration  of  London  Orders  in  Council."    American 
journal  of  international  law  (1916),  10:  843. 

Wood,  Thomas  McKinnon.     British  commerce  and  the  Declaration  of  London. 
London,  1911. 

Wright,  Charles.    "Right  of  search  and  right  of  capture."    Letter  to  The  Nation, 
London   (February  21,  1914),  14:  866. 

"Right  of  search  and  right  of  capture."     Letter  to  The  Nation,  London 


(January  24,  1914),  14:  710. 

Zorn,  Philipp.     "Die  ergebnisse  der  Londoner  Seekriegskonferenz."     Kolnischer 
zeitung,  1909,  Nos.  369,  372. 


I'T^jTV"*^''?  '^TTv  r'-rr 


001  075  174 


University  of  California 

SOUTHERN  REGIONAL  LIBRARY  FACILITY 

305  De  Neve  Drive  -  Parking  Lot  17  •   Box  951388 

LOS  ANGELES,  CALIFORNIA  90095-1388 

Return  this  material  to  the  library  from  which  it  was  borrowed. 


